Chief Justice Roberts and Minimalism: the Story so Far

Ross Douthatt writes that our Fearless Leader has made no commitments not to overrule Roe v. Wade, 410 U.S. 113 (1973), and that "[t]he widespread confidence that Roberts will be content to chip away at Roe" is wrong. Douthatt is "confiden[t] that [Roberts] would overturn Roe - or at least revise it beyond recognition...." He argues that

there are three crucial factors in predicting whether a male Supreme Court Justice would vote to overturn Roe: His judicial philosophy, his religious tradition and how seriously he takes it, and (perhaps most crucially) what his wife thinks about abortion. In Roberts, we have a man who is 1) a judicial conservative, of the sort that would be inclined to treat the penumbras and emanations that create the abortion license with a certain skepticism no matter what; 2) a Roman Catholic who chooses to attend one of the more conservative parishes in the Washington D.C. area; 3) the husband of a similarly-devout Roman Catholic, who serves as legal counsel for Feminists for Life (!); and 4) the father of two adopted children. (The relevance of that last point to a person's sentiments about the abortion debate should not be underestimated.) None of this makes him a certain vote against the Roe-Casey regime, but so far as prognostication goes it's hard to imagine stronger evidence - save a direct statement on the matter - in favor of counting him as such.

Ramesh Ponnuru concurs, but adds that "[g]iven his judicial minimalism, however, I think that Roberts will be reluctant to find that a case does require him to affirm or to overturn Roe." I would very much hope that Douthatt is wrong that Roberts' religious views would influence his view on whether Roe ought to be overruled - that seems little better than the obverse of the "catholic justice" criticism of Gonzales v. Carhart, 127 S.Ct. 1610 (2007). It's a question that ought to be entirely within the ken of judicial philosophy. I'll bite on Ponnuru's comment, though, because it provides a good opportunity to sum up development in my own understanding of Roberts' judicial philosohy.

The Chief's minimalism has attracted repeated attention from us. My very first post at SF came shortly after the Chief's commencement speech at Georgetown and the flurry of commentary it generated gushing over the minimalist creed Roberts supposedly advanced. Prawfsblawg guest Jason Solomon had expressed puzzlement over how to reconcile this supposedly-expressed minimalism with the court's decision in Garcetti v. Cellabos, 547 U.S. 410 (2006); noting that he had "thought 5-4 broad decisions were out under Roberts," Solomon suggested various ways to evade this seeming tension. In response, I argued that while it was plausible that Roberts meant to pledge fidelity to "minimalism as a virtue in and of itself," it wasn't necessary to understand Roberts' speech as making such a pledge. An equally-plausible interpretation, I thought, was that

what Roberts is really interested in is the integrity of the Court and of the rule of law. It isn't that he is looking for minimalism or unaminity for its own sake, it's more that those things lead to "greater coherence and agreement about what the law is"; they "promote clarity and guidance to the lawyers and to the lower courts." Saying that "the rule of law and the Court as an institution both benefit from broader agreement" implies that it is the beneficiaries - not the benefactor - that are the focus.

I suggested that Roberts' remarks were better understood as advancing "minimalism [a]s a tool ... [for] keeping as many justices on board as possible, which leads to stronger majorities, and stronger majorities garner greater confidence in what the law is," which was, after all, Roberts' stated goal. If we take him at his word about his goals, it seemed to me that the more natural reading of his remarks was that minimalism serves those goals: he wasn't "saying that opinions should always be as narrow as possible, ... [but that] he would prefer a narrow ruling with a clear majority over a clear ruling with a narrow majority." Cf. Diane Sykes, "Of a Judiciary Nature": Observations on Chief Justice Roberts's First Opinions, 34 Pepp. L. Rev. 1027 (2007) ("When the Chief Justice announced his preference for narrow decisions as a means of producing greater consensus on the Court, I don't think he meant 'narrow' in the sense of fact-specific rulings that resolve the case before the Court but do not produce a clear legal rationale. That much seems clear from his concurrence in Rapanos and his dissent in Randolph").

That reading brought Georgetown into coherence with Garcetti, I argued, because it suggested a hierarchy of values. If Roberts wants a clear opinion which commands as much support as possible, in a case where a 5-4 break is unavoidable, if there's "simply no way that the four would join a majority opinion that actually decided the case (or, worse yet, if narrowing the ruling would risk splintering the majority)," it makes sense that Roberts would consider how his big-picture goals can next-best be served. As I put it in a subsequent post, my point was that, despite the conventional wisdom, the Chief

is not interested in minimalism for its own sake, but rather, ... he is interested in bringing stability, clarity and coherence to the law. ... [H]e sees stronger majorities as promoting his ends, and narrowly-drawn opinions as the predominant way of achieving those majorities. ... [Nevertheless,] we should not be surprised to see broad 5-4 cases such as Garcetti or Hudson [v. Michigan, 547 U.S. 586 (2006)] 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.

That thesis - at least in its stronger form - bit the dust when Fed. Elect. Comm'n v. Wis. Right to Life, 127 S. Ct. 2652 (2007) (hereinafter WRTL) was handed down. WRTL greatly troubled Pat, who noted that "[h]ad the Chief and Justice Alito voted with Scalia and the others, we had the votes to overturn McConnell [v. FEC, 540 U.S. 93 (2003)] and get the government out of the business of censoring political speech before elections." Grasping a "small ray of hope," he was optimstic that although "[t]he Court had every right to review the facial constitutionality of [BCRA], and chose not to," the result we got arose from a posited belief by Roberts and Alito that "the procedural posture of the case ... [required them as] devout minimalists ... [to] reach[ ] the narrowest possible decision, while fully intending to uphold a facial challenge when presented with a case which could not be resolved without it." I concurred:

if there's a thread that runs through WRTL, Hein [v. Freedom from Religion Foundation, 127 S.Ct. 2553 (2007)] and Carhart, irritatingly enough (since I argued a year ago that the Chief isn't really a minimalist) it's minimalism. That is, in Hein, one might take a liberty and say that the plurality could be read to say "you guys would obviously lose if we overruled Flast, but even if we assume Flast is the governing test, you're still going to lose." Likewise, in Carhart, the majority might be read to say "you guys would obviously lose if we overruled Stenberg (and/or Roe-Casey itself), but even if we assume that's still good law, you're going to lose." Of course, people can disagree with whether those outcomes are correct (that is, as Justice Souter explains in his dissent, one might say Flast militates the opposite result), but it seems to me that the predominant theme ... [is] an unwillingness by Roberts and Alito to overrule a precedent unless they conclude that the case at bar really can't be resolved without overruling it. They concluded only that the cases at bar didn't require overruling Flast and McConnell in those cases, not that they would reaffirm those precedents in a case where the question was unavoidable.

I later reiterated the same point, observing that minimalism and judicial modesty were "perfectly sound reason[s] why Roberts and Alito might have taken the position[s] they took" in WRTL, Hein etc., and tacitly allowed that it was starting to look like Roberts might be a minimalist after all. 1 "When the case at bar requires firm judicial action," I observed,

Roberts and Alito don't mind taking it (cf. Bell Atlantic [v. Twombly, 127 S. Ct. 1955 (2007)] or Leegin [v. PSKS, 127 S. Ct. 2705 (2007)]). But in WRTL[,] as in Carhart or Hein, the resolution of the case at bar (cf. Morse [v. Fredrick, 127 S. Ct. 2618 (2007)], slip op. at 5 n.1 (noting that Justice Breyer's concurrence would not resolve the case at bar)) wasn't necessary to overrule the prior precedents. After two terms, it's hard to reach any definitive assessment, but that certainly seems to be the pattern, even if it irritatingly falsifies (or at least demands modification of) my earlier assessment of Roberts' putative minimalism.

Ultimately, it's too early to make strong pronouncements on the big picture Roberts philosophy; it's hard to tell at this point what is a crosscurrent and what is an eddy. For example, what to make of comments the Chief made in the Heller oral argument recently, wondering aloud "why in this case we have to articulate an all-encompassing standard" just because the court could resolve the case that way. Couldn't the court merely "determine the scope of the [Second Amendment] ... and determine how ... this restriction and the scope of this right looks in relation to those?" Does it need to "articulate some very intricate standard ... that would apply in every case?"2 I stand by my original post to at least this extent: it oversimplifies to call the Chief a minimalist. I think that the concept of judicial modesty might be a better fit - decide what is necessary to decide the case, no more, but no less. (That would also fit in with a post I'm writing about the Washington State Grange and Indiana voter ID cases and what we infer about Roberts' views on the role of the judiciary from his position on facial vs. as applied challenges.) Perhaps that's just wishful thinking on my part, given my affinity for the conceptualization of Justice Black's jurisprudence - the text is equally a mandate and a limit, a principle that seems to somewhat relate here. My inclination is that Ponnuru and Pat are about right: that Roberts will overrule a wrongly-decided case, perhaps even Roe, but only when the case at bar genuinely requires such a decision.

1. 1. I reserved, however, that I was by no means "suggesting that they're right to take that approach, or that minimalism is the best way to go about judging. I'm a formalist - I like bright line rules, I like clarity, coherence and stability. In my view, 'the text is a limit on courts, but it's also a mandate for them,' and that mandate ought not lightly be declined: to paraphrase Barry Goldwater, judicial minimalism in the face of Congressional usurpation is no virtue."
2. 2. Tr. of Oral Arg. at 44.