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

Such as?

The hallmark, in my view, is his ability to gracefully walk the conservatives back from the brink to which their prior opinions have brought the Court. Here's the pattern: The conservative majority writes a set of opinions that do little damage to liberal values on their own but could do enormous damage if taken to their logical conclusions. A case arises in which the earlier opinions, if applied, would become far more consequential, and one or more of the conservatives get cold feet. Stevens then either writes or allows the balking justice to write an opinion that doesn't challenge the decisions this justice has previously signed yet interprets those potentially dangerous cases in a fashion that renders them innocuous.

This happened last term in the medical-marijuana case, which dealt with the extent of Congress's power to regulate interstate commerce—an area in which the conservatives had been flirting with a revolutionary revision. In a pair of cases from 1995 and 2000 the Court—with Stevens dissenting—had for the first time in decades struck down federal statutes as exceeding Congress's commerce power. Although the particular statutes were not terribly important, the opinions raised the question of how far the Court might go to rein in federal power. In the medical-marijuana case, however, Stevens seized control of the issue. With Kennedy joining his opinion and Scalia writing a separate concurrence, he interpreted those two cases narrowly and reasserted the primacy of the broader reading of the interstate-commerce clause embraced by the Court over the previous half century.

It's also what happened in the Lake Tahoe case, in which Stevens walked the Court away from reading the Fifth Amendment's takings clause to require that landowners be compensated for the costs of complying with environmental regulations. And in the arcane but important area of the Eleventh Amendment, Stevens scored a similar triumph with the 2004 case of Tennessee v. Lane. As in the commerce-clause cases, the conservatives had toyed with a substantial narrowing of federal power—in this instance by immunizing state governments from lawsuits under a variety of federal statutes. Stevens had dissented from the whole series of cases, once describing them as "so profoundly mistaken and so fundamentally inconsistent with the Framers' conception of the constitutional order that [they have] forsaken any claim to the usual deference or respect owed to decisions of this Court." In Lane, having bagged O'Connor's vote to allow suits under a provision of the Americans With Disabilities Act, he took the opportunity to construe Congress's power to authorize such suits far more broadly than the Court had done in recent cases.

As Doug Kendall, an environmental lawyer who closely follows the Court's federalism cases, puts it, "Stevens has won the Court by writing opinions that seamlessly merge the old with the new, [reconciling] the precedents of the Brennan and Rehnquist eras in a way neither of the Justices would have thought possible." Another way of putting it is that he has offered conservatives a face-saving way to back down from the radical implications of their earlier opinions.

Or an opportunity to contradict themselves?

Well, it's true that Stevens's gallantry toward his conservative colleagues sometimes leads the Court into absurdities. When, for instance, the Court struck down the death penalty for the mentally retarded, in 2002, the majority faced the problem that the Court had upheld the practice only thirteen years earlier—and that O'Connor, now willing to reject it, had been part of the majority back then. Rather than embarrass her by stating what he clearly believed—that the Court had gotten it wrong the first time around—Stevens wrote a strained opinion declaring implausibly that circumstances had changed so much (in a little over a decade) that what was then constitutional had become unconstitutional.

Last year, when the Court struck down the juvenile death penalty, it was Kennedy who gave Stevens his majority; and like O'Connor, Kennedy was in the uncomfortable position of having voted earlier to uphold the very practice the Court was now overturning. Stevens assigned him to write the majority opinion and penned a preposterous little concurrence, devoid of legal argumentation, that patted him on the back: "If great lawyers of [Chief Justice John Marshall's] day—Alexander Hamilton, for example—were sitting with us today, I would expect them to join Justice Kennedy's opinion for the Court."

How long can Stevens keep it up?

Who knows? His job probably won't get any easier if and when Judge Samuel Alito replaces O'Connor. And he is, of course, eighty-five; though still vigorous and mentally sharp, he could fade at any time. Roberts has precisely the combination of exceptional intelligence and great interpersonal skills that could wrest the Court from his hands—and he will almost surely outlast Stevens.

But don't underestimate Stevens in the short term. He's wily and creative. He shows no sign of wanting to quit. And why should he? He's on quite a roll. In the coming few terms I would bet that he, not Roberts, will assign the most important majority opinions when the two disagree. Roberts may be the chief, but he's going to have to win the Court that bears his name.

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Benjamin Wittes is an editorial writer for The Washington Post.

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