Cross-Examination January/February 2006

Whose Court Is It Really?

John Roberts is the new chief justice, but the Supreme Court isn't his to lead just yet

What are the early indications of what the Roberts Court will be like?

It's not the Roberts Court—at least not yet. It's still the Stevens Court.

Excuse me?

For a few weeks this past summer, between the death of Chief Justice William H. Rehnquist and the confirmation of John G. Roberts Jr. as his successor, John Paul Stevens was the acting chief justice. During those weeks nothing of consequence happened. But the brief accession of the eighty-five-year-old Stevens crystallized what has been obvious for some time: perhaps the Court's left-most justice, he has over the past half decade become its key behind-the-scenes leader. And until I see evidence that Chief Justice Roberts has effected a coup, it will remain the Stevens Court in my book.

What on earth are you talking about? Isn't this Supreme Court a conservative body?

Sure, sure. In some sense the Court is a conservative body. It's not aggressively creating liberal social policy much anymore. And in some areas—the power of states relative to the federal government, for example—it flirts with an aggressively conservative approach.

But consider: In the past few years alone the Court has upheld affirmative action at the University of Michigan Law School, struck down state laws banning partial-birth abortion, upheld the sweeping new McCain-Feingold campaign-finance-reform law, affirmed federal power to prohibit the medical use of marijuana, and struck down the death penalty for the mentally retarded and for those who committed their crimes as juveniles. It has dealt two body blows to the so-called property-rights movement—last term holding that localities could seize private property for economic-development purposes if they paid appropriate compensation, and a few years ago rejecting an attack on the power of state governments to restrict development around Lake Tahoe. It has curtailed its earlier experiment with carving out broad immunity for state governments from lawsuits seeking money damages. It has asserted jurisdiction over military detentions at the Guantánamo Bay Naval Base, in Cuba. And it has entirely rewritten federal law relating to criminal sentencing, requiring that juries, not judges, make the key factual findings that determine how much prison time a convict may receive.

In every one of these cases Rehnquist was in dissent and Stevens was in the majority, which means that he—as the longest-serving justice on the winning side—decided who wrote the opinion. In quite a few of these cases he did so himself. There is simply no comparably important body of law made by the Court in the past half decade for which Rehnquist led the majority.

Isn't this just because the Court's key swing votes, Sandra Day O'Connor and Anthony Kennedy, have recently swung Stevens's way, not Rehnquist's?

To a certain extent, yes. In some cases, such as the death-penalty decisions, Stevens depended on at least one of the swing voters for his majority. But Stevens has many more ways to count to five (the essential task of winning majorities on a nine-member Court) than Rehnquist did or Roberts does. The four liberals form a more cohesive bloc than the five conservatives do, so Stevens generally needs to win only one justice to get his way. Kennedy and O'Connor are often the easiest targets, but from time to time he has shown himself adept at making common cause with the Court's most conservative justices, too. For example, in the key sentencing cases Stevens's majority included both Antonin Scalia and Clarence Thomas—along with the liberals Ruth Bader Ginsburg and David Souter. And he makes allies of conservatives in losing battles as well—for instance, in the case of Yaser Esam Hamdi, whom the Bush administration was holding without trial as an enemy combatant, he signed on to a Scalia dissent that was the most uncompromising rejection of the administration's position in the case.

For this supposedly conservative Court to actually produce conservative results, in short, everything has to work perfectly for the conservatives—and that happens a lot less often than one might expect.

But how much of this can be traced directly to Stevens's influence?

That's hard to say. Stevens may not be the justice who's actually assembling these majorities—if, indeed, any justice is assembling them. The justices are highly independent actors, and he may just be getting lucky—that is, finding himself with the votes that entitle him to assign key opinions. If any liberal justice is out working his colleagues to assemble a functioning coalition, it's probably Stephen Breyer, who has labored over the years to develop a common constitutional language with O'Connor and to detach her from the conservatives to some degree.

Still, certain aspects of Stevens Court jurisprudence do testify to Stevens's personality and skills.

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