SCOTUS, Supreme Court

Ten Years Of The Roberts Court

Should conservatives and libertarians be delighted or disappointed by the U.S. Supreme Court at this milestone?

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On September 29, 2005, John G. Roberts, Jr., was sworn in as the 17th Chief Justice of the United States. So the current Term of the U.S. Supreme Court, October Term 2015, marks ten years of the Roberts Court.

It’s customary to mark SCOTUS time by chief justices — e.g., the Warren Court, the Rehnquist Court — but there’s a good case to be made that we’re really dealing with the Kennedy Court, due to Justice Anthony M. Kennedy’s status as the most influential member of SCOTUS. This was one among many subjects tackled in a fascinating and fun discussion at the Federalist Society’s 2015 National Lawyers Convention, featuring the following impressive panelists:

The discussion began with talk of what the public expected from John Roberts as a justice. Steven Duffield, who worked for Senator Kyl when Roberts was nominated, pointed out that Republicans had just 55 votes in the Senate at the time. There were concerns among Republicans on Capitol Hill of a possible filibuster. But in the end, after Roberts turned in an excellent performance at his confirmation hearings, he was comfortably confirmed by a vote of 78-22.

Jan Crawford covered the Roberts nomination as a journalist (and wrote about it in her excellent book, Supreme Conflict (affiliate link)). When Roberts was nominated, she felt confident that he would be a strong judicial conservative — unlike, say, Justice David H. Souter.

(Crawford quipped that Souter “looked conservative — he wore three-piece suits and was really polite — but he had no real philosophy.” She also emphasized a point she has made time and time again regarding Justice Clarence Thomas, namely, that he has a strong and distinctive conservative jurisprudence and is far from a follower of Justice Antonin Scalia. She declared — to applause from the Fed Soc crowd — that Justice Thomas is “the most egregiously mischaracterized legal figure” of our generation, and that the treatment he receives in the media is “outrageous.”)

Back in 2005, some of her fellow journalists disagreed with Crawford’s evaluation of John Roberts as a solid conservative. He was so nice to reporters — he was friendly and charming when he called them on their cell phones — that they couldn’t believe he was a true conservative. After some of his snarky memos from the Reagan White House got released, Crawford told her colleagues, “See, I told you so! He’s really conservative.”

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But ten years into his tenure, can we say Chief Justice Roberts is a solid conservative? That’s not clear; the Chief Justice “defies labels” and it’s too early to evaluate his legacy, according to Crawford. The real “home run” for conservatives among George W. Bush nominees was not Chief Justice Roberts, she said, but Justice Samuel A. Alito. Crawford praised Justice Alito for his “beautifully written” opinions and his “penetrating,” “different and unexpected” questions at oral argument. (I happen to agree with her; for my money, the best questioners at oral argument are Justice Alito and Justice Elena Kagan.)

In contrast to Jan Crawford, who seemed to hedge a bit on the Chief, Michael Carvin of Jones Day had no problem offering a decisive evaluation of Chief Justice Roberts. Suffice it to say that Carvin’s not a huge fan. Prior to 2005, according to Carvin, we were dealing with the “Kennedy/O’Connor Court,” with Justice Kennedy and Justice Sandra Day O’Connor casting the decisive swing votes (although AMK doesn’t like it when people call him a swing voter). Today it’s the “Kennedy Court” — but Carvin fears it could become the “Kennedy/Roberts Court” if Chief Justice Roberts’s Affordable Care Act jurisprudence spreads to other areas. (Recall that Carvin argued against the ACA aka Obamacare in both NFIB v. Sebelius and King v. Burwell, where the Chief voted against his client both times.)

Like Crawford, Mike Carvin had plenty of good things to say about Justice Alito. When Justice Alito replaced Justice O’Connor, “a principled conservative replaced a suburban Republican state legislator.” To the extent that in the past decade the Supreme Court has made what Carvin called “baby steps towards the return to the rule of law,” Justice Alito deserves much of the credit. But, cautioned Carvin, “if the election goes wrong next year, none of that will matter, and we will all descend into a hellish existence from which we will never emerge.”

Carvin’s co-panelists agreed on the importance of the 2016 presidential election for the composition of the Supreme Court. Professor Michael Paulsen, who concurred on the significance of the Alito/O’Connor switch, pointed out that on Inauguration Day in 2017, three justices will be in their eighties — Justice Ruth Bader Ginsburg (83), Justice Scalia (80), and Justice Kennedy (80) — and a fourth, Justice Stephen G. Breyer, will be in his late 70s (78, to be specific).

So the next president, whoever he (or she!) might be, “could well get two, three, possibly four appointments” to the Supreme Court, according to Jan Crawford.

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“John Roberts has been frustrating for many conservatives,” Crawford acknowledged. But if a certain someone wins the White House, Chief Justice Roberts “may well be writing a lot more dissents on the other side.”

(Disclosure: I sometimes speak to Federalist Society chapters, but I did not participate in the National Lawyers Convention as a speaker.)

Ten Years of the Roberts Court [Federalist Society via YouTube]
2015 National Lawyers Convention Schedule [Federalist Society for Law & Public Policy Studies]
Hillary Clinton, if president, could appoint 4 Supreme Court justices [Washington Times]

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