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
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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.

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.

Benjamin Wittes is an editorial writer for The Washington Post.
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