Judicial Modesty?

The Roberts Courtby Marcia Coyle

Simon & Schuster. 416p $28

During the hearings preceding the confirmation of John Roberts as chief justice of the United States, Senator Charles Schumer asked: “What kind of justice will John Roberts be?” Roberts himself suggested that he wanted to be known as a modest judge, a judge who respected precedent and appreciated the limited role of the judge to decide the cases before him, rather than legislating from the bench. For Roberts, courts should not have “a dominant role in society and redressing society’s problems. It is their job to say what the law is.”

In The Roberts Court: The Struggle for the Constitution, the National Law Journal’s chief Washington correspondent, Marcia Coyle, tells the stories of four landmark 5-to-4 Roberts court decisions. Coyle skillfully crafts engaging narratives that invite the reader to consider both what sort of justice John Roberts has been and what sort of court he has been striving to lead. Her lively descriptions of oral arguments and the scene in the courtroom as important decisions are handed down in the final days of each term, along with the personal accounts of participants in the process out of which Coyle shapes her narrative, bring a humanizing depth to our knowledge of the justices, lawyers and litigants whose interactions enliven the doctrinal disputes through which constitutional law develops. Along the way, Coyle gives readers accessible accounts of how lawsuits travel from the complaint to the court, the debate between originalists and advocates of a “living Constitution” and the genuine collegiality that exists on the doctrinally divided Roberts court. The book’s focus on a handful of 5-to-4 decisions is grounded in Coyle’s conviction that these decisions help us to learn the most about the justices themselves and their often “sharply divergent views of history, approaches to interpreting the Constitution, the role of government in American lives and what makes a just society.”

Coyle’s presentation of the book’s focal cases provokes questions about the extent to which judicial modesty actually can be said to characterize the work of the Roberts court. In a pair of cases from 2007—Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education—the court invalidated locally enacted programs that took students’ race into account in order to promote racial diversity in assignments to primary and secondary schools in Seattle and Louisville. During oral argument, Roberts asked a question that seemed to suggest that these plans used race in a way that was indistinguishable from the use of race for the purpose of segregation, which the court struck down in Brown v. Board of Education.

Roberts ultimately announced the judgment of the court, striking down the plans in an opinion bluntly concluding that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justice Breyer’s passionate dissent argued that Roberts failed to respect past precedents giving school districts more leeway to use race in an inclusive manner, misapplied the relevant constitutional principles and undermined “Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality.” Breyer concluded his oral summary of his dissent with words not found in the dissent’s written text: “It is not often in the law that so few have so quickly changed so much.” He clearly found it hard to see much modesty in this Roberts opinion.

Coyle suggests that the Roberts court acted with similar immodesty in two other landmark 5-to-4 decisions: District of Columbia v. Heller and Citizens United v. Federal Election Commission. In Heller, the court held that the District of Columbia’s gun regulations violated the Second Amendment rights of individuals who wish to keep handguns in their homes for self-defense. But Coyle wonders whether the Supreme Court needed to get involved in this case at all. No burning conflict had yet developed in the lower federal courts over the issue, and neither Congress nor the states seemed to be inclined to enact gun control legislation that might run afoul of an emerging understanding of Second Amendment protection for an individual right subject to reasonable regulation. Coyle concludes that Heller revealed “an aggressive conservative court taking on a long-sought objective on the conservative political agenda.”

At his confirmation hearings, Roberts noted that, because overruling a precedent constitutes a “jolt to the legal system,” simply thinking a prior case was wrongly decided is an insufficient reason to undermine the legal stability promoted by respecting precedent. Yet in Citizens United, the Roberts court jolted the legal system (and the political process) by invalidating limits on corporate spending in federal elections on the ground that they violated the free speech rights of corporations. In an opinion by Justice Kennedy, the court overruled prior precedents supporting such limits, explaining that they amounted to censorship of corporate political speech that was “vast in its reach.” Roberts wrote separately to justify the court’s refusal to respect precedent in this case: “We cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” Coyle notes that Citizens United ranked with the school and gun decisions “as the most aggressive decisions yet of the conservative court.”

A seemingly more restrained Roberts announced the court’s judgment in the 2012 decision that rejected a constitutional challenge to Congress’s power to enact the Affordable Care Act’s individual mandate. In what Coyle calls “the most remarkable opinion of his career,” Roberts joined the four conservative justices in concluding that the mandate was beyond Congress’s power to regulate interstate commerce and joined the four liberal justices in holding that Congress possessed the constitutional authority to enact the mandate as part of its power to tax. Roberts thus announced a potentially significant limit on congressional power while simultaneously upholding the individual mandate as a tax.

Coyle concludes by returning to Senator Schumer’s question: what sort of justice would John Roberts be? “Roberts has acted with a boldness that angered those on the left on issues of race, guns and campaign finance, and with restraint and modesty at times that frustrated those on the right.” The health care decision showed Roberts in his modest mode, arguing for judicial restraint: “‘Proper respect for a co-ordinate branch of the government’ requires that we strike down an Act of Congress only if ‘the lack of constitutional authority to pass [the] act in question is clearly demonstrated.’” Yet, as Coyle notes, “each term is a story in itself,” and the Supreme Court term that ended in June 2013 kept alive the question of how best to characterize Roberts and the court he leads. The four dissenters in Shelby County v. Holder clearly wondered where proper respect for a co-ordinate branch of government went in Roberts’ opinion for the court striking down a central provision of the Voting Rights Act of 1965, which had been reauthorized by Congress in 2006. In the words of Justice Ginsburg, “the Court’s opinion can hardly be described as an example of restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.”

An apparently more modest Roberts, however, found himself dissenting from the court’s decision striking down the Defense of Marriage Act’s exclusion of same-sex partners from the definition of “spouse” as the term is used in federal statutes. Dissenting is United States v. Windsor, Roberts argued that the court had no jurisdiction to decide the merits of this particular case and that DOMA was within Congress’s constitutional power to legislate in any event. The much-anticipated case challenging the use of race in college admissions, Fisher v. University of Texas, found Roberts joining Kennedy and five other justices in stepping back from re-examining existing precedent regarding the use of race in admissions and sending the case back to the court of appeals for further review under the standard of strict scrutiny articulated by Justice O’Connor for the court in 2003 in Grutter v. Bollinger.

The Roberts court will have the chance to think about that issue again in the term that began in October, in a case challenging Michigan’s state constitutional prohibition of the consideration of race in public university admissions. The court’s docket also includes potentially divisive cases involving the president’s power to make recess appointments and the constitutionality of prayers offered at the start of town board meetings. Those who read Coyle’s book will be well prepared to enter into the story of the coming term as it unfolds.