Thursday, June 26, 2014

John Roberts: Conciliator in Chief?

      Supreme Court justices appeared to be divided and in search of a compromise when they heard arguments two months ago on police authority to search a suspect’s cell phone after an arrest. But there was no division and barely a hint of compromise when Chief Justice John G. Roberts Jr. announced the unanimous decision this week [June 25] instructing police to “get a warrant” before searching a cell phone except in very limited emergency circumstances.
       Roberts is only first among equals, of course: he has facetiously rued the Framers’ decision to give the chief justice only one vote. But surely he must have played an important role in conference in getting eight often fractious colleagues to join in a forceful affirmation of privacy rights for the digital era. As NBC’s Pete Williams aptly remarked, the decision was “surprising” precisely because it was both “unanimous and so bold.”
       A chief justice also can be bold, however, by exercising restraint. And Roberts showed this kind of bold restraint in two other of the week’s decisions as well as earlier in the term. Roberts shares the generally conservative views of the court’s four other Republican-appointed justices, but twice this week he refused to join conservative colleagues who were voting to undermine or overrule Supreme Court precedents defended by liberals on and off the court.
       In both of those cases, the court’s decisions were unanimous and favored conservative constituencies: businesses in one, anti-abortion groups in the other. But Roberts formed majorities with the court’s liberal justices to avoid the kind of “shock” to the legal system that he had warned against in his confirmation hearings back in 2005.
      In Halliburton Co. v. Erica P. John Fund, Inc., Roberts unapologetically reaffirmed the quarter-century-old “fraud on the market” doctrine that forms the basis for the modern securities fraud class action. Roberts acknowledged the continuing criticism of the doctrine and of its effects in facilitating costly litigation for businesses that they say brings few real benefits for investors. But he insisted that the court considered all those views in its seminal case Basic, Inc. v. Levinson (1988); any policy concerns, he said, were properly addressed to Congress, not the court.
      The ruling does help securities fraud defendants by giving them an early opportunity to prevent suits from being certified as class actions. But three conservatives — Scalia, Thomas, and Alito — wanted to go further and voted to overrule Basic outright.
      In somewhat like vein, Roberts wrote for the court in its decision McCullen v. Coakley striking down a Massachusetts law establishing a 35-foot buffer zone around abortion clinics. Roberts said the law violated the First Amendment by burdening more speech than necessary, but only after accepting the state’s interest in protecting access to clinics and reaffirming precedents subjecting similar laws only to “intermediate” instead of “strict” constitutional scrutiny.
      Four justices — Scalia, Kennedy, and Thomas in one opinion and Alito separately — insisted that the law improperly singled opponents of abortion and called for applying the often fatal strict scrutiny. In his opinion, Roberts all but laid out road maps for legislators to follow in enacting abortion clinic protections that can pass constitutional muster.
      Those three decisions contribute to the term’s remarkable statistic. Out of 65 signed decisions so far, 41 have come on unanimous votes — more than 60 percent. With only two decisions remaining, the unanimity score is guaranteed to be significantly higher than the Roberts Court’s previous high of 49 percent in Roberts’s first term. True, the unanimous results have papered over doctrinal disagreements, as in this week’s cases, but the record recalls to mind Roberts’s confirmation hearing hope for more unified decisionmaking.
      Roberts still knows how to be an activist. He led the term’s early 5-4 decision in McCutcheon v. Federal Election Commission to strike down the federal law establishing “aggregate” contribution limits for individuals in federal campaigns. And this week, he voted with conservatives Scalia, Thomas, and Alito in the recess appointments case, National Labor Relations Board v. Noel Canning, to impose a more drastic limit on the practice than established by the five-vote majority formed by liberals plus Kennedy.
      Setting those cases to the side, Roberts’s stances during the term recall the aversion to 5-4 rulings that he voiced to CNN’s Jeffrey Rosen, in an interview for The New Yorker. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” Roberts said. “I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.”
       The term’s two remaining cases, to be decided on Monday [June 30], might seem likely candidates for 5-4 decisions. In Sebelius v. Hobby Lobby Stores, Inc., private companies are claiming a religious exemption from the Obamacare requirement to include coverage for contraceptives in employee health plans. In Harris v. Quinn, home health workers classified as state employees are challenging a requirement to pay dues to the union that represents them in collective bargaining.
       Statistics are hardly the full measure of a court, and one term is only that. As the court wraps up this term, however, Roberts appears to be playing a more conciliatory role than in some in the past.

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