Clarifying my position on Roberts' purported minimalism

Writing at Feminist Law Profs, David Cohen sees our Fearless Leader as a potential vote against FPBAA in the Carhart case pending before the Supreme Court:

Ever since he stressed at his confirmation hearings that he favored a “modest” jurisprudence, I’ve held out hope that he would not necessarily agree with 2000’s Stenberg v. Carhart, but that he would see the damage to the Court’s integrity that overturning it just seven years later would do. Reversing a decision in such a highly politicized area would certainly not be a modest act for the Chief.

He goes on to cite a post of mine from earlier this year in support of the proposition that, even if the

characterization of the Chief as minimalist isn’t right[,] and instead Roberts is more interested in the integrity of the Court regardless of minimalism, I’m still hopeful.

Even if David and I agreed on which course of action in Carhart would qualify as the "modest" path, or still less, which outcome would do greater harm to the court's integrity, that wasn't quite the point I was making in that post. Since that post has attracted some attention of late, I feel compelled to clarify what point I was making.

My argument was - and remains - that the most natural reading of the Chief Justice's speeches on the subject to date is that Roberts is not interested in minimalism for its own sake, but rather, that he is interested in bringing stability, clarity and coherence to the law. I contend that the foregoing is Roberts' goal, and that in service of that goal, he sees stronger majorities as promoting his ends, and narrowly-drawn opinions as the predominant way of achieving those majorities. I further argued that we should not be surprised to see broad 5-4 cases such as Garcetti or Hudson with the Chief in the majority, because if my argument that other commenters have confused Roberts' means for his ends is correct, then in cases where greater unaminity cannot be served by a narrower opinion, Roberts can still serve his principal goal by a clearer opinion.

I scarcely dare peer into the tea leaves and predict what all this holds for Carhart, but being an opinionated sortof chap, I shall do so. I disagree with David on what constitutes judicial modesty, although I would certainly agree that whatever the modest solution to this case may be (and it may well be to decide only the question presented, ignoring the federalism question; cf. Printz v.United States, 521 U.S. 898 (1997) (Thomas, concurring) ("As the parties did not raise this argument, however, we need not consider it here"); Akins v. FEC (order of D.C. Cir., 1998) (Silberman, J., concurring in order) ("the Supreme Court has moved pretty far from traditional notions of judicial restraint that confine courts to issues presented by the parties, but I think [a] decision [in which the court disposed of the case on grounds raised by neither party] represents another large step in that regrettable process....") (citation omitted)), my proposal that the court resolve the case by discharging its duty to say what the law is would be the least modest approach in one sense. But again, this depends on what one thinks to be judicial modesty: is it really "modest" to further protract the court's involvement in an illegitimate usurpation by the courts (one, moreover, where even pro-choicers claim -- I think disingenuously -- that its presence is superfluous)? Is it really "modest" to continue a line of reasoning which sucks more and more policymaking authority into the courtroot at 1 First Street NE? The oral arguments last week do not seem to bespeak the "modesty" of having the court intimately involved in crafting policy on an area that the Constitution not only gives the Federal government in general, including the Supreme Court, no authority at all over, but over which the Supreme Court is institutionally inadequately equipped to engage in.

Even assuming that judicial "modesty" is indeed something to be aspired to, and that its proponents are arguing in good faith -- and on that point, it is worth noting that the concern with "judicial modesty" has entered the liberal lexicon at approximately the same pace as conservative and proceduralist judges have ascended to the bench -- I generally share Justice Scalia's view that judicial "modesty" is best served through the establishment of clear rules:

when, in writing for the majority of the Court, I adopt a general rule, and say, "This is the basis of our decision," I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle. In the real world of appellate judging, it displays more judicial restraint to adopt such a course than to announce that, on balance, we think the law was violated here -- leaving ourselves free to say in the next case that, on balance, it was not ... [I]t is [very difficult] to demonstrate the inconsistency of two opinions based upon a "totality of the circumstances" test ... Only by announcing rules do we hedge ourselves in.

A. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179-80 (1989) (some internal quotation marks omitted). I tend to think that Roberts is less interested in bright-line rules than is Scalia, but again, keep foremost in your mind: what are the means and what are the ends? Scalia sees rules as useful and desirable, but he sees them as a means, not an end; the ends that he has in mind are essentially the same as Roberts: clarity, coherence and stability in the law, and the preservation of the Constitution as our governing document and of the system of government it ordains.

I think that certainly, in Carhart, Roberts would prefer an opinion that is clear and consistent, one that fosters the legitimacy of the judiciary and one that is supported by as many members of the court as is possible. Unfortunately, an opinion meeting the first three tests can only possibly command a maximum of five votes, and that being the case, I would expect to see one of two outcomes: either a staggeringly awful Kennedy opinion narrowing Stenberg, or a fairly good Roberts opinion overruling it.

Post facto:
Chief Justice Roberts and Minimalism: the Story so Far (4/2/08)