Friday, July 13, 2007

Will John Roberts ever get better?

The New Republic Online:By Jeffrey Rosen
In several of the term's important cases, Roberts and Justice Samuel Alito declined to join Justices Antonin Scalia and Clarence Thomas in calling for the open overruling of previous precedents. Scalia even accused Roberts of 'judicial obfuscation' and 'faux judicial restraint' for his refusal to overturn the entire structure of campaign finance law rather than dismantling it incrementally. But Breyer, too, seemed unimpressed by conservative incrementalism: He suggested that it was better to overturn precedents cleanly than to pretend to preserve them while distorting them beyond recognition. 'There were ten cases listed as important cases in thenewspapers. I was in the majority twice--that was better than nothing,' he said. 'In three of the other cases, the majority of the Court said it was overruling prior precedents, and, in four other cases, the minority of the Court said you are overruling prior precedents. I thought there was quite a lot of precedent overruled, but the people on the other side, who are very good judges, thought they weren't overruling. I do think it's better to be open.'...

It's too soon, as Breyer suggests, to tell whether Roberts will ultimately be more successful in achieving consensus. But, since he has embraced this as the standard by which his tenure should be judged, Roberts presumably understands that he can't preside over a decade of five-four decisions. Far from going down in history as a unifier in the tradition of John Marshall, he would be perceived as the leader of a partisan conservative Court, one that may be increasingly at odds with a more liberal president and Congress. ...

In our conversation, Breyer self-consciously embraced the mantle of restraint. "To a very large measure, judges have to be careful about intruding in the legislative process," he said. "[R]uth and I have been among the ones less likely to strike down laws passed by the legislature, and, by that measure, we're not very activist." Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena. The fact that conservatives now rely on the Court to win their battles for them--striking down democratically adopted campaign finance laws and integration programs--is a sign of their weakness.

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