It’s a time-honored phenomenon — the new conservative Supreme Court Justice attends a Georgetown party or two, gets a bit of praise from the Washington Post, and pretty soon begins to “grow in office” by issuing decisions conservatives don’t like. This is turn engenders “a strange new respect” on the part of the liberal establishment
I’ve never been fully convinced that this scenario actually explains why so many Supreme Court Justices have proven so disappointing to conservatives. But Washington’s liberal media elite must subscribe to the scenario, judging from its recent behavior towards Chief Justice Robers and Justice Alito. Not long ago, the Washington Post suggested that Alito might not be “Scalito” after all, since in one opinion he had discussed the legislative history of some law, a move disfavored by Scalia. But the “Scalito” meme was never anything more than a cutesy liberal attempt at a slur, and one can be a very conservative jurist without endorsing Scalia’s views of statutory construction.
The latest attempt to “grow” a Justice in office comes from E.J. Dionne. His target is Chief Justice Roberts. Dionne’s ploy seems particularly like a fool’s errand. Roberts isn’t newly arrived from New Hampshire, Arizona, or California. He’s been in Washington D.C. for his entire career, and isn’t likely to be wowed by Georgetown society or praise from a liberal partisan at the Washington Post.
Nonetheless, Dionne purports to find hope for Roberts, as well as a potential fight among Supreme Court conservatives, in a speech the Chief Justice gave at Georgetown law school. In that speech, Roberts said that the court should not decide more than what is necessary to dispose of a case. He added that one of the benefits of decisions that do not decide more than necessary is that they tend to obtain broader agreement among the Justices.
Dionne claims that this approach to deciding cases “could disappoint those who like their court decisions bold and ideological.” Perhaps, but it won’t disappoint many conservatives. Indeed, Roberts’ speech is simply a fresh articulation of his theory of judicial modesty which he presented during his confirmation hearings to the general applause of conservatives, but not liberals. Dionne suggests that Justice Scalia won’t be happy with Roberts’ approach, but the only evidence he cites is an old book by liberal law professor Cass Sunstein who claims that Scalia is actually a judicial activist. This standard-issue assertion has more to do with the left’s cartoonish view of Scalia than with reality. In any evernt, if there’s a brewing rupture between Roberts and Scalia, it isn’t apparent from the way they have been voting this term, a fact Dionne ends up lamenting.
No column Dionne about the Court would be complete without some whining about Bush v. Gore. Dionne argues that Roberts’ approach to judging logically would have produced a different outcome in that case. He notes that Justices Souter and Breyer “were desperately seeking consensus” through a compromise outcome under which the recount in Florida would proceed but under uniform standards. Dionne implies that the Roberts appoach would have been to bring these two Justices into the tent by embracing that “consensus.”
Dionne can’t be serious. Roberts’ point is that the Court shouldn’t rule more broadly than necessary to dispose of the case at hand. Disposing of Bush v. Gore required the Court to pick among several outcomes, one of which was no recount and another of which was the recount Souter and Breyer wanted. By selecting the former outcome, the Court did not violate Roberts’ rule because selecting it did not do more than what was necessary to resolve the dispute. As I read him, the Chief Justice isn’t saying that the majority should reach a result it thinks is wrong in order to win extra votes — he is saying only that extra votes can be one of the benefits of not deciding more than what’s necessary. If I recall correctly, the Bush v. Gore majority actually gained broader consensus by writing more than necessary, thus suggesting that narrow writing doesn’t always result in greater consensus. But that’s another story, and it’s getting late.