Ahead of Supreme Court Roundup, Howard Discusses Emerging Picture of the Roberts Court

With several new justices added in recent years after a long draught, U.S. Supreme Court Justice John Roberts' bench is more conservative but still a work in progress, says University of Virginia law professor A. E. Dick Howard.

A. E. Dick Howard

In a new article in the Charleston Law Review, Howard examines the ways in which conservatives, unhappy with the "judicial activism" of the Warren Court of the 1950s and '60s, have been seeking to roll back that court's legacy.

On Thursday, Howard and UVA Law faculty members Kerry Abrams and Margaret Foster Riley will discuss key cases from the most recent term at the Student Legal Forum's annual Supreme Court roundup, which will be held at 5 p.m. in Caplin Pavilion.

What do you think the winner of the presidential election, whether it's Obama or Romney, will need to understand about the Roberts Court?

The Roberts Court is still taking shape. From 1994 to 2005, there had been no vacancies on the court — the second longest period in American history during which there had been no turnover. Then, in 2005, Justice Sandra Day O'Connor retired, and Chief Justice William Rehnquist died. President George W. Bush filled those two seats, appointing John Roberts and Samuel Alito. O'Connor's departure removed an important moderating voice on the court, and her replacement is proving himself to be one of the present court's most conservative members. Then, after President Obama took office, Justices John Paul Stevens and David Souter retired. Obama named Sonia Sotomayor and Elena Kagan as their replacements. The newest justices have added backbone to the court's moderately liberal wing. Justice Anthony Kennedy frequently provides the decisive vote in closely divided cases.

The next president, whether Obama or Romney, will want to study the court's decisions for at least two reasons. One is that the government is so often a litigant in the Supreme Court, and that tribunal's decisions can make or break a president's initiatives, as we were so vividly reminded when the court, by a five-to-four vote, upheld the Affordable Care Act. The second reason is that further vacancies may prove critical in defining the court's further directions. There was a time when justices proved disappointing to the president who appointed them (recall Eisenhower's disappointment in William Brennan, and Republicans' distaste for Souter). But it is fair to say that justices on the current court vote along lines which, by and large, parallel the hopes and expectations of the presidents who put them on the bench.

What are the defining themes of the Roberts Court?

One way to think about the Roberts Court is to compare it with the Warren Court. We have come a long way from those days. The justices of the Warren Court showed little interest in the nuances of doctrine; they were more interested in doing the right thing. Today, in good part because of conservative critiques (including those of scholars) of the Warren Court, the decisions of the Roberts Court are much more likely to read like law review articles, in which the justices debate the fine points of methodology. In substantive terms, the Roberts Court is, in most areas, a manifestly more conservative tribunal than was the Warren Court. The Roberts Court is decidedly friendlier to business than was the Warren Court. The Roberts Court is inclined to be more skeptical of government action; unlike the Warren Court, the present majority is unwilling to give Congress carte blanche in its exercise of the commerce power. In the exercise of its judicial power, the Roberts Court is sometime cautious, sometime aggressive. It showed caution when it decided a challenge to FCC powers on notice grounds, passing up on an invitation to decide the case on First Amendment grounds. But it was aggressive in reaching out to decide the controversial Citizens Unitedcase on constitutional grounds when narrower grounds were readily at hand. It took nine years (from 1953 to 1962) for the Warren Court to reach maturity. Likewise, it was nine years from the time William Rehnquist became chief justice (in 1986) to the time (around 1995) that the Rehnquist Court was in full stride. By those benchmarks, the Roberts Court is still a work in progress.

Has the Roberts Court turned out differently than you initially expected? In what ways?

We have now seen seven years of the Roberts Court. In many areas of its work, the court has shifted to the right. This has been, for the most part, no surprise, especially when one considers the significance of Alito's replacing O'Connor. But one should hesitate about taking cash bets on the Roberts Court. Kennedy, generally conservative, will sometimes join the court's more liberal members, as he did when a 5-4 majority ruled that the Eighth Amendment's ban on cruel and unusual punishment is violated when a state imposes life imprisonment without possibility of parole on juveniles who commit murder. Alito is finding a distinctive voice, as he has done in issuing solo dissents from the court's invocation of the First Amendment to overturn convictions of protesters at funerals or to invalidate a statute aimed at videos featuring cruelty to animals. And Roberts himself can surprise us, as he manifestly did in the health care decision.

Do you think Roberts' unexpected alliance with the Supreme Court's liberal justices in upholding the health care reform law indicates a shift in the court?

Even while agreeing with the court's conservatives that the individual mandate could not be justified as a regulation of commerce, the chief justice found a basis for the mandate in Congress' taxing power. This was especially intriguing when one recalls that, in the briefs filed in the case, it was the commerce issue that was front and center. It was only during oral argument that the taxing power began to surface as a plausible ground for upholding the mandate. Many conservatives are sharply critical of Roberts, complaining that he abandoned his conservative moorings. There is more than one theory of why Roberts voted as he did. There are grounds to think that Roberts was thinking of the court as an institution, hoping to insulate it in this politically charged situation from the criticism (recalling complaints about the campaign finance case, Citizens United) that the justices were behaving as partisans. This view sees Roberts as a judicious leader husbanding the court's political capital. An alternative theory argues that, by voting to uphold the individual mandate (and thus stay out of the political crossfire), Roberts has made it easier to take a more boldly conservative position in sensitive cases about to come before the court in the future, such as next term's affirmative action and voting rights cases. Also, remember that, in the health care case, Roberts agreed with the conservatives about limits on the commerce power. Consider also that, in practical terms, the most important part of the health care decision is the limit imposed on Congress' ability to impose new requirements on the states when exercising the spending power. Seven justices held that the act's expansion of Medicaid exceeded Congress' spending power by unduly coercing states to accept new conditions for existing Medicaid funds. The justices severed the offending provision, thus making expansion optional.

Your article suggests that modern conservatives are seeking to roll back what they view as the Warren Court's "judicial activism." Can you elaborate on this? How effective have they been in achieving this goal?

In keynoting the Charleston conference on "The Role of Government" [organized by the Charleston Law Reviewand Furman University's Riley Institute of Government], I sketched out the story of how conservative critics of the Warren Court have sought to undermine that court's legacy. They have taken several paths. One is to nominate judges and justices thought to embrace a conservative view of the Constitution and of the judicial role. Another path has been the creation of conservative public interest law firms (such as the Institute for Justice), inspired by the success of such liberal groups as the ACLU and the NAACP. This required that conservatives abandon their traditional distaste for "judicial activism" and to use the courts to their own ends. Yet another instrument of the conservative counter-attack has been the rise of the doctrine of originalism — the argument that the Constitution should be read according to its "original meaning." Finally, conservatives have sought to create networks among conservative lawyers.

All of these efforts have been factors in the rightward trend in much of the Supreme Court's jurisprudence. The strategy of careful vetting of nominees to the bench has brought justices like Roberts and Alito to the court. Conservative public interest law firms have identified sympathetic litigants (such as the homeowners in the Kelo case, involving eminent domain) to heighten public attention to their cases. Thanks in particular to Justice Antonin Scalia, originalism is a conspicuous feature of Supreme Court opinions (read, for example, the opinions in the right-to-bear-arms case, D.C. v. Heller). And the activities of the Federalist Society are ample testimony to the fruits of networking.

You also note that the political environment has become marked by "hyper-partisanship." What are the implications for the Supreme Court?

Hyper-partisanship has become an obvious fact on the political scene. One need only think, for example, of the tea party successes in the congressional elections of 2010 and the deadlock between House Republicans and President Obama as the nation neared the "fiscal cliff" in 2011. Hyper-partisanship has its effects on the Supreme Court. Ever since the heated hearings on the nomination of Robert Bork in 1987, confirmation hearings are a form of guerrilla theater. Interest groups pile on, and partisans occupy center stage. This process is bound to affect how presidents choose nominees, and the result is a court with readily identifiable wings to left and right. Hyper-partisanship also affects the legislative process, producing legislation that, when it goes before the court, is more likely to be freighted with political implications.