Getting to Yes
For Chief Justice Roberts, it isn't easy.

The Wall Street Journal, Saturday, July 1, 2006

In a Georgetown Law School commencement address in May, Chief Justice John Roberts said that he strives for "unanimity or near unanimity" on the Supreme Court in order to "promote clarity and guidance" to lawyers and lower courts. "The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground. . . . If it's not necessary to decide more to dispose of a case, in my view it is necessary not to decide more."

This Wednesday the court decided Lulac v. Perry, the Texas redistricting case. The decision ran 132 pages and comprised six separate opinions. Earlier in the week the court also produced six opinions, though only 70 pages, in a Vermont campaign finance case. Achieving unanimity is easier said than done, and the doctrine of deciding narrowly turns out to be of only limited usefulness.

The court's fragmentation is largely the legacy of a half-century's liberal activist jurisprudence. Justices have both discovered individual rights in areas where the Constitution is silent (most notably sexual privacy, including abortion) and curtailed rights (free speech, equal protection) to permit their favored social policies (campaign finance restrictions, affirmative action).

This has given rise to a crude political taxonomy of the court. "Conservative" justices--Antonin Scalia, Clarence Thomas and possibly Samuel Alito--disagree with many liberal precedents and wish to scale back or overturn some of them. "Liberals"--John Paul Stevens, David Souter, Ruth Bader Ginsburg and to a lesser extent Stephen Breyer--are comfortable with those precedents and eager to extend them where possible. "Swing" justices like Anthony Kennedy can be either liberal or conservative, depending on the situation. This gives them outsized clout, so long as neither side has a reliable majority. Justice Kennedy's fellow swinger, Sandra Day O'Connor, was often called "the most powerful woman in America."

On such a court, every associate justice is a centrifugal force. Conservatives and liberals hew to their convictions, while swingers have the added incentive of influence. This dynamic was most strikingly on display in Rapanos v. U.S., a case involving wetlands regulation under the Clean Water Act. By 5-4 the court overturned an appellate ruling that had endorsed the Army Corps of Engineers' expansive definition of "navigable waters." The four liberal justices wanted to defer to the corps' definition, while Chief Justice Roberts and Justices Scalia, Thomas and Alito would have rejected it. Justice Kennedy split the difference, leaving it to the lower court to determine whether the property in question had "a 'significant nexus' to waters that are or were navigable in fact or that could reasonably be so made."

In a concurring opinion, the chief justice seemed to express frustration with Justice Kennedy: "It is unfortunate that no opinion commands a majority of the Court. . . . Lower courts and regulated entities will now have to feel their way on a case-by-case basis. . . . What is unusual in this instance, perhaps, is how readily the situation could have been avoided."

To some extent this belies Chief Justice Roberts's adage that "if it's not necessary to decide more . . . it is necessary not to decide more." It was Justice Kennedy's minimalist concurrence, after all, that left the law muddled; it would have been clearer had either the conservative or the liberal bloc prevailed.

Happily for those who favor an aggressive war against al Qaeda, a similar result obtained in the term's most important case, Hamdan v. Rumsfeld, in which Justice Kennedy declined to join several key elements of Justice Stevens's opinion striking down the Pentagon's system for trying Guantanamo detainees. (Chief Justice Roberts did not participate because he was on the appellate panel that decided the case last year.)

The chief justice did command a unanimous court in one major case, Rumsfeld v. FAIR. By 8-0, the justices upheld the Solomon Amendment, which would have denied federal funds to universities (including Georgetown) that refused to allow military recruiters on campus. But tellingly, the case was not decided on the narrowest possible ground. The court held not only that this was a permissible condition for federal subsidies, but that Congress could have mandated the admission of military recruiters even if no federal money were involved.

Two unanimous cases decided in January, before Justice Alito joined the court, illustrate the limits of narrowness. Ayotte v. Planned Parenthood concerned abortion regulation; Wisconsin Right to Life v. Federal Election Commission, a section of the McCain-Feingold campaign finance law. In each case the court--without a dissent or even a separate concurrence--vacated a lower court's rulings on narrow technical grounds and sent it back for further adjudication. This approach made tactical sense. The court had been fractured over both abortion and campaign finance, and Justice Alito's arrival could change the balance. It was wise not to make new law while the court's makeup was in flux.

But on Monday, when the court decided another campaign finance case, the justices reverted to their fractured form. Randall v. Sorrell overturned Vermont's draconian contribution limits. Justice Breyer, joined by Chief Justice Roberts and Justice Alito, decided the case on the "narrowest possible ground," throwing out the limits without reconsidering Buckley v. Valeo, the 1976 case that upheld limits on campaign donations. Justice Alito said he might revisit Buckley in a future case; Justice Kennedy proclaimed himself "skeptical" about it; and Justices Scalia and Thomas said they'd overturn it. Justice Stevens, in dissent, also wanted to overturn Buckley--but to permit limits on campaign spending as well as donations. The Ayotte consensus is likely to prove fleeting too. The court almost certainly will not be unanimous when it decides Gonzales v. Carhart, a partial-birth abortion case, in its next term.

In his confirmation hearings last year, John Roberts showed himself to be a man of intelligence, charm and political acumen. If anyone can bring consensus to the Supreme Court, surely he can. But his first term in office showed that this goal will require patience and persistence, and maybe another new justice or two.

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