Who's Left? Who's Right? Who Knows?

By Douglas W. Kmimec
     
The Roberts Court has completed its third term, and Chief Justice John Roberts is now really in charge--well, most of the time. Marked by neither the surprising unanimity of Roberts's initial term, nor the record number of 5-4 decisions in his second, the third term may have been a charm for Roberts: a sure and steady diet of 6-3 decisions or better,with the chief in the majority 90 percent of the time. Justice Anthony Kennedy can still be the swing vote for an important outcome, as in his long disquisition extending the writ of habeas corpus to noncitizens being held outside the United States' sovereign territory in Guantanamo (Boumediene v. Bush (2008 U.S. LEXIS 4887)), or his disapproval of the death penalty for child rape (Kennedy v. Louisiana (2008 U.S. LEXIS 5262)). But for the most part, the chief has mastered a Supreme Court version of, if you will pardon the colloquial expression, "face"-book, in order to have a better chance of having the Court see things his way.
      This is how it works: Concerned that misusing a drug-sentencing protocol might in some future case result in the "cruel" administration of the death penalty, the Roberts Court chose to leave it for another day (Baze v. Kentucky, 128 S. Ct. 1520 (2008)). Troubled that a voter-ID requirement might prove unduly burdensome to the exercise of the franchise by elderly, poor, or disabled voters, well, put that one off as well (Crawford v. Indiana, 128 S. Ct. 1610 (2008)). Think that some protected speech might run afoul of a statute designed to stop child porn, then rely on the scienter element to eliminate overbreadth (U.S. v. Williams, 128 S. Ct. 1830 (2008)). The new quasi-consensus model of the high court is to grant review, take a peek, toss around the possible shortcomings of the law or practice under review, and if the justices think matters are mostly all right, then just leave it at that before disagreement breaks out. This is a winning play all around: The chief imposes his discipline of restraint not to decide more than necessary, potential dissenters get to outline the limits of their tolerance for the majority view, and Justice Kennedy gets to continue his engagement as the Hamlet of the bench, changing sides issue by issue.
      Is this leave-it-for-another-day mentality good for the law's development and its uniform application? Maybe. It more or less vindicates legislative choices, and it can build good will on the bench that might be relied upon when the justices are ideologically divided over one thing or another. Though some may see only empty robes here, thus far that has turned out not to be true. Lower courts are more than happy to finish the job--sometimes, though, as in the partial-birth abortion cases, doing a more complete makeover than a modest alteration of the high court's loose- fitting wardrobe. For example, the Virginia Supreme Court struck down as applied an abortion limitation that was virtually identical to the federal restriction upheld by the Court on its face a year earlier. (Compare Gonzales v. Carhart (127 S. Ct. 1610 (2007) with Richmond Medical Center v. Herring, 527 F.3d 128 (4th Cir. 2007)).
      Beyond the habeas right for the Gitmo detainees that somewhat rehabilitated our standing in the world community, other notable cases last term included the invalidation of the D.C. handgun ban, which everyone saw coming but wondered how the master of originalism (Justice Antonin Scalia) would escape, well, originalism (Dist. of Columbia v. Heller, 2008 U.S. LEXIS 5268); Justice John Paul Stevens's personal declaration against the death penalty (Baze v. Kentucky); the reaffirmation of the authority of states to favor their own local public selves (as opposed to showing favoritism for private businesses, which is still a dormant Commerce Clause no-no) by granting a tax exemption only for its own state bonds (Kentucky v. Davis, 128 S. Ct. 1801 (2008)); and no exception to the Sixth Amendment's Confrontation Clause when the reason the testimonial witness isn't at trial to be cross-examined is because she's dead--presumably because she was killed by the defendant. (It might have seemed logical to grant an exception to the Confrontation Clause, but the "presumably" part above is exactly what has to first be proven to a jury beyond a reasonable doubt (Giles v. California, 2008 U.S. LEXIS 5264)).
      Last term also saw an unusual number of cases in which civil rights plaintiffs walked away victorious: The court ruled that 42 U.S.C. section 1981 includes a racial-retaliation claim (CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951 (2008)); that federal workers may bring a claim that they were retaliated against because of age (Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008)); and--staying with age--employers, not employees, have the burden of giving reasonable non-age-related explanations for decisions that have a disproportionate impact on that basis (Meacham v. Knolls Atomic Power Laboratory, 2008 U.S. LEXIS 5029).
      Meanwhile, of course, it's an election year, and based on recent decisions there is sure to be an argument that one candidate or the other deserves support because of whom he might appoint to the Court in the event of a vacancy. Senator McCain has already tried to fire up his base with a speech that seemed to condemn judges generally (and unfairly) as activists. Senator Obama says he is looking not just for competence but also for empathetic judges with "good hearts."
      The extent of the divide between the two candidates is perhaps best captured by the fact that McCain's exemplars--Roberts and Justice Samuel Alito--are Obama's castoffs. This really has presented me with a conundrum, because Roberts and Alito are friends of mine from long-ago government service, and I know them to be people of great talent and sensitivity. Nevertheless, my normally Republican-leaning sentiments now lie with Obama. Go figure. It's enough to make one yearn for those days of unalloyed clarity and simplicity, when candidates were either for or against Antonin Scalia.
      Yet, more subtle evaluations of judges can be good for the system. There's far too much casual labeling of so-and-so as a Reagan, or Clinton, or Bush, judge. Sure, there is some truth to the shorthand label, but it is also corrosive to the rule of law. And in any event, in term three Roberts and Alito themselves parted company on several pivotal votes dealing with civil rights and federalism.
      It seems that heading into the 2008 election, you can't tell the players even with a scorecard. And, as a matter of equal justice under law and judging cases on their individual merits, that has to be a good thing.
     
      Douglas W. Kmiec is the Caruso Family Chair and professor of constitutional law at the Pepperdine University School of Law.
     

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