Monday, March 13

Chief Justice Roberts: A mid-term report.

HLS Professor David Barron, writing on LawCulture has an interesting early analysis of Chief Justice Roberts's opinions thus far. Although I've been tracking all of the Supreme Court opinions this term for my firm's Appellate group, I hadn't noticed that the Chief's have contained "[n]o references to law review literature, treaties, casebooks, or anything else not written by one of the three branches themselves." Prof. Barron goes on (please excuse the inexcusably pervasive typos):

That got me to thinking: perhaps it's not just foreign law that the new conservative judicial philosophy thinks is illegitimate; it's everything that's not an autoritative statement of a constitutionally recognized branch of govenrment. And that got me to looking. Thus far, the new chief has written two other opinions for the court. One finds the same citation pattern in each. Now that could just be a consequence of the kinds of opinions he's decided thus far. None, for example, has called for much delving into constitutional history. And, to be sure, it's only been three opinions. But still, I have my suspicions that this citation practice is intentional. if so, is it an attractive one or is it troubling? On the one hand, it has a kind of no nonsense quality about it -- a just the facts ma'm style fully in accord with the new conservative judicial pose on display at the last two confirmation hearings. On the other hand, it might also suggest a vision of constitutional decision making that is awfully cramped and technical, in which the only guideposts are past cases, and statutory and regulatory texts stripped of their context, animating purposes or ideas. Lost in this approach is any sense of the broader legal culture that produces authoritative legal statements or the way in which such statements in turn shape the culture. It is statecraft by hornbook. It's too early to tell of course, whether there is anything to this "pattern." But it's worth watching -- and challenging if it develops into an actual theory of constitutional decision making.

Interesting observations. I'll confine myself to two comments:

Lost in this approach is any sense of the broader legal culture that produces authoritative legal statements or the way in which such statements in turn shape the culture.

What does it mean to say that "the broader legal culture . . . produces authoritative legal statements"? Surely only the Supreme Court (or the highest state court, in the case of state law) can provide "authoritative legal statements." And what is the "broader legal culture"? The A.B.A. (or perhaps its erstwhile keynote speaker, noted legal brainbox Jane Fonda)? The American Law Institute? The faculty of Prof. Barron's Harvard Law School (which has produced its share of frightening legal theories)? Foreign courts? How does one know that the "broader legal culture" has produced an "authoritative legal statement"? I can read a Supreme Court opinion (though its clarity will depend on its author), but where do I turn for what Prof. Barron regrets will be lost? Sounds like the status anxiety of an academic who fears that his faculty's work may be largely irrelevant. Honestly, I could count the number of times I consulted a law review during my clerkship on one hand and still have enough fingers to hold a teacup comfortably.

It is statecraft by hornbook.

Statecraft? The Supreme Court is now responsible for "leading a country"? And here I was thinking that the Constitution guaranteed the States a republican form of government. This must be an academic speaking.

Cheap sarcasm aside, Prof. Orin Kerr over at the Volokh Conspiracy has some interesting further comments, based on some 1997 comments by then plain ol' John Roberts. According to Prof. Kerr:

One interesting piece of evidence is a comment Roberts made in July 1997, during an appearance on the the Newshour that reviewed the October Term 1996. In discussing a recent case on the scope of Congressional power, Georgetown law prof Susan Bloch lamented that no one on the Rehnquist Court had discussed a theory that was popular in academic circles. Roberts added that this wasn't a bad thing:

SUSAN BLOCH: For example, when we were talking about the Freedom--the Restoration of Freedom Act, the--there was the theory that Justice Brennan had that the court--that Congress could enlarge the scope of constitutional protections and couldn't constrict it? And that had a--when we teach constitutional law that's--that was a valid theory. On this court, no one, not even the dissenters, even talked about or embraced that theory, so that a number of theories that were in play when Justices Brennan and Marshall were on the court aren't even mentioned anymore.

MARGARET WARNER: How do you see it, John Roberts?

JOHN ROBERTS: Well, I think it's a moderate court but one that is very serious about the limits it sees in the Constitution, whether it's the limits on Congress, limitations on the federal government, or limitations on the court, itself. And if it's a court that doesn't seem so warm and embracing of theories that are popular on the law school campuses, I hope the other members of the panel will forgive me for not thinking that's a serious flaw.

Well excavated, Professor. A great insight.

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