Sunday, September 30, 2012

Roberts 4.1: Resetting or Refueling the Right-Wing Agenda?

      John Roberts will step through the maroon curtains promptly at 10 o’clock Monday morning [Oct. 1] to open a new Supreme Court term, his eighth as chief justice of the United States. Refreshed from a teaching gig in Malta and a family vacation in Maine, Roberts will tend to preliminaries and then call the first case: Kiobel v. Royal Dutch Petroleum Co., a major test for human rights litigation.
      From Day One of the new term, the question will be which John Roberts has returned to Washington to lead a court split down the middle between conservatives and liberals. Will it be the Radical Roberts: the Reagan administration alumnus who harbored ambitions back then of overruling Roe v. Wade, abolishing affirmative action, and eliminating the exclusionary rule? Or will it be the Restrained Roberts: the judicious chief justice who saved Obamacare, spared the Voting Rights Act, and rides herd on rambunctious conservative colleagues?
      Time will tell, but maybe sooner rather than later. The court’s first case gives the conservative bloc a chance to scrap three decades of lower court precedents that have allowed foreign victims of human rights violations abroad to sue their abusers in the U.S. court system. A more dramatic showdown looms the next week [Oct. 10] when the court takes up a challenge to race-conscious admissions in colleges and universities, Fisher v. University of Texas, just nine years after the court upheld such policies after a full airing of the issue.
      Judicial restraint and stare decisis — respect for precedent — tilt the scales one way in both cases, but not the way the conservative majority almost certainly wants to rule. Roberts, more than anyone else, will decide whether the conservatives’ wishes are to become the law of the land.
      Roberts’ four conservative colleagues voted this spring to invalidate the entirety of a 2,700-page law, President Obama’s signature domestic policy achievement, on the basis of a constitutional theory that was viewed as fanciful just three years earlier. Roberts disappointed them — angered them, according to the account leaked to CBS’s Jan Crawford — by saving the law and leaving its fate to “political branches.” The chief justice was pilloried in Republican and conservative circles for his betrayal.
      Under hostile fire, Roberts responded with his signature charm and wit. Speaking to a judicial conference on June 29 — one day after the ruling on the health care law — he joked that he would be spending the next two weeks teaching on the island of Malta, “an impregnable fortress.” “It seemed like a good idea,” he said. Asked at the same conference whether he favored any changes in Supreme Court rules, Roberts said he would eliminate “the odd historical quirk that the chief justice only gets one vote.”
      Roberts’ charm works wonders. The other justices in the conservative bloc are more than a bit charm-challenged. Antonin Scalia may be a delightful companion at the opera, but on the bench he is growing ever more argumentative, dogmatic, and churlish. Samuel A. Alito Jr. has yet to be seen to smile after six-and-half-years on the bench. Clarence Thomas’ silence over the same period is the outward manifestation of the rigid certitude that marks his jurisprudence. And then there is Anthony M. Kennedy, the pivotal vote on so many issues, whose earnestness must be as tiresome to his colleagues as it is to most of the Supreme Court press corps and many others.
      The court’s first two major cases for the term showcase the strength of the conservative bloc. The court heard arguments on Kiobel in February on the limited question whether corporations can be subject to liability under the Alien Tort Statute — in this case, Royal Dutch Petroleum for alleged complicity with the Nigerian military dictatorship in a brutal putdown of oil drilling protests. At Alito’s prompting, the court decided to ask for new arguments on the issue of whether human rights violations from abroad carried out by foreigners belong in U.S. courts at all. Court watchers infer that the answer is a done deal: no.
      In the University of Texas affirmative action case, the court granted review of the Fifth Circuit’s decision upholding the admissions policies despite procedural issues that would have doomed any appeal that the majority did not want to hear. The white plaintiff, Abigail Fisher, would not have been admitted to UT under the race-neutral policies that her lawyers advocate; and her only remaining claim is for the refund of her $100 application fee. Given the conservatives’ votes on other race-conscious policies, the only question seems to be not whether but how far they will go in limiting the use of race in admissions policies.
      Supreme Court scholars define a “natural court” as the time period with no changes in personnel on the court. By that definition, the court is now denominated as “Roberts 4,” the fourth different court of Roberts’ tenure. But Roberts’ pivotal vote in the health care case is at least as important a milestone as a new justice.
      Roberts has joined with the other conservatives in scrapping or bending precedents on issues ranging from campaign finance and gun rights to criminal law and civil litigation. Arguments in the first two major cases may give useful clues on whether Roberts wants to refuel that right-wing agenda or reset the court on a more restrained course.

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