THEY SHOULD BE GLAD THEY DODGED THE MIERS BULLET (bvia Kevin Whited):

The John Roberts Method: How the Supreme Court is patiently bending the law to the right. (Tom Goldstein, June 30, 2009, New Republic)

Here is what strikes me most about this Term. The Court is moving steadily in the direction of rolling back Warren Court-era precedents that conservatives view as significant overreaching of the judicial role. To be clear, that isn't the Court's principal occupation. Most of its docket is filled with important but ordinary questions of federal law. But it is a significant trend.

I am struck in particular by the opinions of the Chief Justice that seem to lay down markers that will be followed in later generations of cases. NAMUDNO details constitutional objections to Section 5 of the Voting Rights Act that seem ready-made for a later decision invalidating the statute if it is not amended. Herring contains significant language that can later be cited in favor of a broad good-faith exception to the Fourth Amendment exclusionary rule that applies to individual police mistakes.

If I'm right about the direction of the case law, the Court's methodology is striking. It is reinforcing its own legitimacy with opinions that later can be cited to demonstrate that it is not rapidly or radically changing the law. This approach may be in the starkest relief if next Term the Court cites its recent decision in Wisconsin Right to Life as precedent for concluding that McConnell v. FEC and Austin v. Michigan have been significantly undermined and should be overruled. The plurality and concurrence in Wisconsin Right to Life famously debated how aggressively the Court should go in overruling prior campaign finance precedent. The Chief Justice urged patience--not moving more quickly than required--and the wait may not have been long.

Intellectuals of the Right are easily impressed by a good resume and some incendiary writing. W saw further and understood better so sought to place collegial justices on the Court who would bring folks with them, like Roberts and Miers. Antonin Scalia may be as smart as any two mere mortals, but he has no influence on the Court.

Fortunately, the UR too is an intellectual rather than a governor so he's appointed an Alito-type, not a Roberts/Miers-type.

Posted by Orrin Judd at June 30, 2009 5:02 PM