Apparently he really thought that Roberts would value turning the Court into a land of cuddly, buy-the-world-a-coke unanimity over pursuing his own ideological agenda.
The chief justice's own work was mystifying. He knew what was at stake: In an interview published in The Atlantic early last term, he argued, "If the Court in [the fourth chief justice John] Marshall's era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have." That, he said, "suggests that what the Court's been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up." If the court does not "refocus on functioning as an institution," he argued, "it's going to lose its credibility and legitimacy as an institution."
Yet even having staked some of his prestige on unanimity, Roberts seemed willing to give up next to nothing jurisprudentially to achieve it. To be sure, he has largely refrained from piling on by writing concurring opinions or duplicative dissents. And he has sometimes declined to overturn precedents other conservatives wish to attack; for example, he and Alito did not vote to overturn the court's decision upholding the McCain-Feingold campaign finance law, preferring instead to carve out a yawning exemption from its strictures for certain types of "issue ads." Still, on the big votes, Roberts was just as predictable as every other justice last term, and he did not shy away from aggressive action he must have known would provoke liberal colleagues. Indeed, it was Roberts and Justice Stephen Breyer who, with equal fervor, went mano a mano over the legacy of Brown.
I'm once again glad I let my subscription to The Atlantic expire. Between Wittes and Flanagan and Hitchens ... the obtuseness, it burns!
Posted by armand at October 1, 2007 12:21 PM | TrackBack | Posted to Law and the Courts