SCOTUS Follow-Up: The Perils of Too Many 5-4 Rulings

Background: First, a long post on the dangers of a federal judiciary whose rulings (and expressed rationales) are harder and harder to distinguish from simple Republican/Democratic party positions. Then, a distilled version in a shorter post. Now some updates:

1) I don't have any disagreement with Ta-Nehisi Coates's examination of whether the "norms" of political life have done as much to buffer extremism as I suggested in the original post. I was talking about right/left interaction among the parties, and I do make the case that in this arena previous norms were different, and that the difference mattered. Main example: the filibuster. Either party could have decided at any point over the years to filibuster just about every appointment and piece of legislation. That didn't actually begin to happen until five years ago. Ta-Nehisi is talking mainly about rights, power, and relations among the races. Of course he is right that "norms" did very little to promote justice there.

2) In light of the current controversy, it's worth reading Jeffrey Rosen's interview with Chief Justice John Roberts, which the Atlantic ran five and a half years ago. The subhead gives the idea:

And as Rosen put it:

In Roberts's view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5-4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.
Good point.

3) To the same effect, it is worth recalling former Justice John Paul Stevens's dissent from the infamous 5-4 ruling in Bush v. Gore.
It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
4) From a reader just now, on the implications of today's Arizona immigration decision for the health-care ruling later this week:
Roberts joined the AZ majority today to give a 5-3 ruling (Kagan recused). Only a 4-4 ruling was needed to uphold an earlier decision to overturn the law. He joined a politically polarized decision, possibly extracting a compromise to save debate on stop-and-check for another day in return. Perhaps this was the price for being picked to write a 6-3 majority opinion on Obamacare with a similar compromise to make the bill more conservative (e.g. the Roberts Obamacare opinion might establish a commerce-clause limit that stops somewhere between health-insurance and broccoli mandates).

That would be two consecutive decisions on politically polarized issues in which Roberts crosses sides to (1) provide a larger than needed majority and (2) moderate the result to be more conservative. I imagine that this would instantly reverse a lot of negative opinion about the Roberts court in the legal community, which would give him much more room to make really sweeping, conservative change in other areas that'll be up for debate soon -- ending voting rights enforcement, requiring all union members to opt in on dues, eliminating personal campaign contribution limits, ending affirmative action, upholding the latest abortion restrictions, a broader ruling against firearms restrictions, etc. If you take the view that nationalized healthcare is inevitable and will probably go into effect while Roberts is still Chief Justice, it makes more sense to build up support for other priorities.

Or maybe I'm way too optimistic and these two rulings have nothing to do with each other or Roberts joining the AZ ruling was Kennedy's price for helping to overturn Obamacare.

I recognize that all this hypothesizing is, yes, hypothetical as we wait to see what the Court does, and what reasoning it offers. Will weigh in again on this topic after that. 

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James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States and once worked as President Carter's chief speechwriter. His latest book is China Airborne. More

James Fallows is based in Washington as a national correspondent for The Atlantic. He has worked for the magazine for nearly 30 years and in that time has also lived in Seattle, Berkeley, Austin, Tokyo, Kuala Lumpur, Shanghai, and Beijing. He was raised in Redlands, California, received his undergraduate degree in American history and literature from Harvard, and received a graduate degree in economics from Oxford as a Rhodes scholar. In addition to working for The Atlantic, he has spent two years as chief White House speechwriter for Jimmy Carter, two years as the editor of US News & World Report, and six months as a program designer at Microsoft. He is an instrument-rated private pilot. He is also now the chair in U.S. media at the U.S. Studies Centre at the University of Sydney, in Australia.

Fallows has been a finalist for the National Magazine Award five times and has won once; he has also won the American Book Award for nonfiction and a N.Y. Emmy award for the documentary series Doing Business in China. He was the founding chairman of the New America Foundation. His recent books Blind Into Baghdad (2006) and Postcards From Tomorrow Square (2009) are based on his writings for The Atlantic. His latest book is China Airborne. He is married to Deborah Fallows, author of the recent book Dreaming in Chinese. They have two married sons.

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