Comments on: Measuring “Divisiveness” in OT06

By: stevej

stevej — Mon, 02 Jul 2007 20:23:19 +0000

Rufus, i concede the point.

I was thinking of the school-diversity case (in which kennedy wrote a separate concurrence) and got that confused with WRTL.

Steve Jaros

By: Marc Shepherd

Marc Shepherd — Mon, 02 Jul 2007 19:51:14 +0000

It’s funny that Scalia calls Roberts’ approach “faux judicial restraint.” There’s a long-standing tradition in the law that judges avoid overruling precedent if they can avoid it. By one measure, the mark of conservatism is to rule narrowly, and limit decisions to the facts presented. “If it is not necessary to decide, then it is necessary not to decide.” By contrast, Justices Scalia and Thomas are activists — albeit, activists with an ideologically conservative viewpoint. Once you start tossing out old precedents, the result can be conservative or liberal, depending on the bias of the majority.

It’s a highly dubious proposition that the Court became “clearly more liberal during the mid-90s.” Justice Ginsburg is a bit more liberal than Byron White, Justice Breyer is a bit less liberal than Harry Blackmun (as he had evolved). Looking at it holistically, the Court had about the same ideological balance after their arrival as it had before.

By: David.Huberman

David.Huberman — Mon, 02 Jul 2007 18:11:53 +0000

Rufus Peckham writes:

“I think it’s probable that Roberts is what he says. He prefers to limit and weaken precedents and won’t overrule unless the question is squarely presented and the decision requires it.”

This is an interesting idea, and I can’t help but wonder if it’s supported by the recent acceptance of a number of CVSG’d cases which were rejected by the SG as “poor vehicles”. Is the SG, perhaps, looking at cases in an absolutist way (“this case could/couldn’t be used to overturn/set precedent”) while the Roberts court look at issues more granularly (“just the facts, ma’am, don’t worry about the sweeping precedents”)?

No idea – just thinking out loud.

By: rufus peckham

rufus peckham — Mon, 02 Jul 2007 17:18:31 +0000

Steve,

1)That doesn’t make sense. Kennedy JOINED Scalia’s opinion to overturn McConnell and dissented from the original opinion in 2003. I can see your point in a case like Hein, but Roberts had nor reason to keep Kennedy on board in WRTL. Kennedy was already on board with overturning McConnell, before Roberts even showed up.

Roberts has now participated in 2 CFR decisions and has been incremental in both. Remember, he was the only conservative to join Breyer’s ode to stare decisis in Sorrell last year.

I think it’s probable that Roberts is what he says. He prefers to limit and weaken precedents and won’t overrule unless the question is squarely presented and the decision requires it.

By: stevej

stevej — Mon, 02 Jul 2007 14:16:32 +0000

Adam – thanks much for this information.

A few comments:

1) Scalia was right: Robert’s opinion “Wisconsin right to life” WAS faux-restraint, but i’d bet it was strategically done. Unlike Scalia, Roberts seemingly has a well developed diplomatic sensibility, and i’d bet he knew that getting Kennedy on board required the use of less-strident language.

2) Breyer’s comment about “so few changing so much” reminded me that he himself was a player in just such a change: the court became clearly more liberal during the mid-90s, after he and Ginsburg were appointed. In my opinion, the court’s ideological outlook today is pretty much what it was circa 1993, after the appointment of thomas and souter: leaning to the right, but without five votes to overturn big precedents like roe v. wade.

-Steve Jaros