Robert's Rules of orders into the future
- [Note: Today, Monday, comparatively very young Judge Roberts
starts the top leadership position in the U. S. legal system, as the
youngest Chief Justice (in what -- 200 years, comparing his age
with the average lifespan of all previous generations in the U.S.)
How many decades will Chief Justice Roberts have to lead? WRF]
The Conservative Persuasion
John Roberts's studies in intra-court politics bode well
for his tenure as chief justice.
by Christopher Levenick
09/29/2005 2:00:00 PM
http://www.weeklystandard.com/Content/Public/Articles/000/000/006/135jlkrj.asp?pg=1NOW THAT JOHN ROBERTS has been confirmed as chief justice of the Supreme Court, time alone will tell whether President Bush has made good on his promise to appoint judges in the mold of Clarence Thomas and Antonin Scalia. After all, it is a curious but undeniable fact that Republican presidents, unlike their Democratic counterparts, often see their Supreme Court nominees drift from their supposed ideological commitments……Gerald Ford has been called to account for the predictably liberal John Paul Stevens; Ronald Reagan, for the erratic Sandra Day O'Connor and the capricious Anthony Kennedy; and George H. W. Bush, for the left-leaning David Souter.[Constitutionalists] …have good reason to expect Roberts to be the justice that President Bush promised them. They may reassure themselves with the knowledge that Roberts was formed in the crucible of the Reagan revolution, and that he evinces the dispositional conservatism of a traditional Catholic. By any reasonable account, Roberts appears more reliable than O'Connor…Yet for all the talk about how Roberts might fare as a justice, there has been relatively little discussion of how he will fare as a chief justice.It is, to be sure, a secondary consideration. The chief has relatively little direct power; the duties of the office are less like a corporate executive and more like a meeting facilitator. But that hardly renders the position unimportant. What the chief lacks in hard power can be made up in soft. Influence may be exerted though diplomacy and tact among the justices and by compromise and maneuver within the Court. It can be exercised, in short, through the quiet art of persuasion.…Roberts is -- and has been for at least two decades -- acutely attentive to the difficulties and possibilities that attend upon the office. A fine example may be found in a June 4, 1985, memo he wrote for the White House regarding the controversial case of Wallace v. Jaffree.Wallace represents the high-water mark of Supreme Court legal secularism. A 6-3 majority found that an Alabama measure to begin every [public] school day with a moment of silence violated the Establishment Clause of the Constitution. …On the same day the verdict was announced, Roberts assessed the decision in a memo to Fred Fielding. He began by restating the outlines of the case with characteristic precision and intelligence. But of particular interest is a parenthetical paragraph appended to the end of the note:
(For what it's worth, a reading of the opinions strongly suggests that the outcome of this case shifted in the writing. As I see it, Rehnquist was writing for the Court --he would not write 24 pages of dissent (longer even than Stevens's majority [opinion]), and the structure and tone of the dissent is that of a majority opinion. He had five votes to uphold the statute, and tried to use the occasion to go after the bigger game of the Lemon test itself.
O'Connor probably was in Rehnquist's original majority but was not convinced that [his] broad opinion applied to the facts, penning a dissent to the would-be majority -- her 19-page concurrence is directed solely to [his] opinion, critiquing it step-by-step and analyzing none of the others.
It is very unusual for a concurrence to take on a dissent in such a fashion, and at such length. O'Connor's dissent apparently persuaded Powell to drop by the wayside as well, …as if to explain why he was changing a vote.Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority. Which is not to say the effort was misguided. In the larger scheme of things what is important is not whether this law is upheld or struck down, but what test is applied.)
Roberts's instant analysis exhibits a sophistication indicative of long study in intra-court politics. The speed of its composition similarly suggests an innate understanding of leadership on the Supreme Court.Perhaps most encouragingly, one finds in Roberts's brief a willingness to fight for first principles. It is heartening to note that he appreciated Rehnquist's readiness to take a risk in order to try to strike down a deeply problematic bit of precedent.And it is refreshing to see Roberts acknowledge that, at the end of the day, what really matters is not whether any particular statute is upheld or struck down, but that the Court is construing the Constitution correctly and consistently. …All of this bodes well for Roberts's tenure as chief justice. Even if President Bush manages to replace O'Connor with a reliably conservative jurist, the rightward bloc of the Court will only consist of four votes: O'Connor's successor, Scalia, Thomas, and Roberts. To craft a majority will still require securing one more vote.A delicate equipoise of principle and politics, prudence and persuasion, will prove necessary. All the more reassuring, then, to know that Roberts has been thinking for at least two decades about how to achieve precisely such a principled majority.
[Note: How many decades will Chief Justice Roberts have to lead? ]What do you think?