Roberts, Kennedy, and Collegiality on the Supreme Court
During the summer of 2006, Chief Justice John Roberts spoke publicly about the need for greater unity on the nation’s highest court. In a commencement address at Georgetown Law School, he urged that “unanimity, or near-unanimity” would yield “clarity and guidance” for lawyers and lower courts trying to understand the Supreme Court’s rulings. Yet despite Roberts’ ambition, the greatest impact of the Bush appointments appears to have come less as a result of the new Chief Justice than of the rightward shift that occurred after Justice Samuel Alito replaced the more centrist Justice Sandra Day O’Connor. Although Roberts appears to have had some success promoting unity and collegiality, the Court’s decisions in many cases are still characterized by longstanding ideological divisions. With O’Connor gone, the Court’s most contentious jurisprudence ismuch more likely toconverge around the moderate conservatism of the Court’s new center, Justice Anthony Kennedy.
Elusive Consensus
In Time this past summer, Jeffrey Rosen, law professor at George Washington University and legal affairs editor of The New Republic, described the Court’s most recent term as “a group hug” between liberal and conservative justices. While Roberts’ 2006-2007 term saw 33 percent of the decisions split five to four, that number dropped to 17 percent in the most recent term. By encouraging narrower opinions and persuading the Court to take fewer contentious cases, Rosen argued, Roberts improved the chances for consensus. But it is hard to overlook the divisiveness of the 2006-2007 term. Although the next term did see the percentage of splits cut almost in half, full unanimity fell significantly too.
The moderate level of success is not, however, due to a lack of effort. There is little Roberts can really do when the Court ruptures along old ideological fault lines, and when that happens, all eyes are on the median justice. Anthony Kennedy, Rosen told the HPR, has been perhaps the “biggest obstacle” to Roberts’ vision because he “prefers sweeping, broad decisions written by Justice Kennedy,” rather than the narrow ones Roberts hoped would promote broader agreement.
A New Center of Gravity
Since O’Connor’s departure, Kennedy has played the role of “swing justice” with relish. In the 2006-2007 term, he made the majority in a perfect 24 of 24 of cases decided by a five to four vote. Richard Fallon, professor at Harvard Law School, recalled in an interview with the HPR that many Court watchers begantalking about the “Kennedy Court” instead of the “Roberts Court” as a result.
One of those watchers was Benjamin Wittes, Research Director in Public Law at the Brookings Institution. “In a huge number of important cases,” Wittes told the HPR, “it really comes down to persuading Kennedy.” Rosen agreed, arguing that due to Kennedy’s sway the Court is more likely to “lean right,” especially on issues such as affirmative action, abortion, and campaign finance. Fallon likewise noted that the five to four decisions to uphold the federal partial-birth abortion ban in Gonzales v. Carhart and to strike down a handgun ban in D.C. v. Heller were “signals” that the center of gravity had shifted.
At the same time, the Court’s “red shift” has been less dramatic than many observers anticipated. Tom Goldstein, a partner at the law firm Akin Gump who has argued nearly 20 cases before the Court, told the HPR that the Court has been “fairly pragmatic rather than dogmatic or idealistic.” Kennedy’s tendency to buck the conservative bloc on issues ranging from executive power during wartime in Hamdan v. Rumsfeld to capital punishment for child rape in Kennedy v. Louisiana means that the overall jurisprudence is less alarming to liberal Court watchers and less polarizing to the public at large than it could have been.
If the Court’s basic ideological makeup remains intact over the next few years, Roberts will continue to have an incentive to promote unity. “His temperament, his pragmatism, and his persuasive powers will be tested,” Rosen noted. Over the long haul, Roberts’ pragmatic judicial temperament may allow him to put a more distinctive stamp on the Court’s jurisprudence. Wittes described Roberts’ role as more “setting a tone” of collegiality than exerting actual “leadership.” But even building that ethos of cooperation and “mutual respect,” Wittes cautioned, is “a ten-year project, not a one-year project.”