July 8, 2006

THE COURT WITHDRAWS AS THE EXECUTIVE ASSERTS:

Process Makes Perfect: John Roberts' marked, and positive, influence on the Supreme Court (Rodger Citron, 7 July 2006, Slate)

Every year, immediately after the Supreme Court term ends, the politics of law briefly becomes our national obsession. This year, inevitably, the pundits' focus was on just how far to the right the court had shifted as a result of the arrivals of Chief Justice John Roberts and Justice Samuel Alito...
John Roberts presented himself as a "legal process" justice at his confirmation hearings. Legal process was a theory propounded by a number of elite law professors in the 1950s in response to the activism of the Supreme Court under Chief Justice Earl Warren. Adherents hold that cases should be decided by "neutral principles" and that the more representative government actors (Congress, the president, and his representatives) should decide big policy questions. They believe in—indeed they emphasize—the distinction between law (which they see as an autonomous discipline governed by reason and principle) and politics (which they view as merely the expression of one's political preferences)...
The question for the future: Can Roberts continue to orient the court toward his goals of judicial modesty and greater consensus on the court? If so, he may succeed in his task of distancing the court from the political fray...

The threat of Bush's signing statements (Thomas Mann and Norman Ornstein, 7 July 2006, San Diego Union Tribune)

Senate Judiciary Committee Chairman Arlen Specter held a little-noticed hearing in late June to air concerns about presidential signing statements...
Since 2001, President Bush has objected on constitutional grounds to more than 500 provisions in more than 100 pieces of legislation – a number approaching the 575 constitutional statements issued by all of his predecessors combined...
The president has not simply objected to an overall law – he has said flatly that he will not enforce, or will use his own interpretation, for specific provisions of the laws. And, of course, he has not vetoed a single one of the bills to challenge Congress either to override the veto or to rewrite the law to fit the president's concerns. Nor has he turned to the courts to adjudicate the constitutionality of provisions he believes are over the line...

Bush and Roberts are attempting something truly radical here. Roberts, as he said he would, is using his formidable interpersonal skills to extricate the Court from its disastrous incursion into political rule and Bush is using the signing statements to quickly step into the vacuum and declare his independence from the court.

MORE:
Who really rules the Supreme Court? In Kennedy's swing vote vs. Roberts' consensus-building, the chief justice holds sway. (Douglas W. Kmiec, 8 July 2006, Los Angeles Times)

THE RECEIVED WISDOM at the end of the most recent Supreme Court term is that because of his swing vote, Justice Anthony Kennedy is more in control of the court than the new chief justice, John G. Roberts Jr...
But in my judgment, it's a misleading picture of what's happening now — partly because Kennedy alone is often deliberately speculative and partly because Roberts has at least the nascent but constructive capacity to span partisan division...
Roberts' ability to influence justices across the spectrum of ideas suggests that the most apt modifier for the court is neither "Kennedy" nor "Roberts" but "open-minded." The strengthening of this quality for the nation's highest tribunal ought not to be missed by outworn efforts that either pigeonhole the court by partisan label or make it a cult of personality.

Posted by Pepys at July 8, 2006 4:38 PM
Comments

It'd be helkpful if he'd prevailed in Hamdan, where the Court has no legitimate part to play.

Posted by: oj at July 9, 2006 1:52 PM
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