The Not Really Obligatory Character Analysis of the Court

Okay, so the last two posts canvassed the merits of the recent health care ruling and the longer-term impact of that ruling on jurisprudence. This one is devoted to speculative discussion of what's going on with the nine individual human beings sitting on the Court right now. Well, a few of them anyway: most of them offer pretty uninteresting analysis right now, going along as they always have. Who are the exceptions? Mostly John Roberts and Antonin Scalia, and the dispute between the two of them, though Kennedy appears to be up to something himself.


On Monday, in reaction to Arizona v. United States and to Scalia's firebreathing dissent from it, I heard someone speculating that Scalia was in such a bad mood because he knew he'd be disappointed today in this case. That appears to be more or less true, but I'd take it a little further. I think Scalia's starting to get distinctly upset at Chief Justice John Roberts, on basically two counts. Not only has Roberts supplanted Scalia as the leader of the conservative wing of the Court, but he has also failed to be as committed to the conservative wing of the Court as one might have expected. The former is pretty self-evident. Scalia used to be considered by just about everyone the intellectual leader of and the driving force behind the conservative wing. Then Roberts came along, and because he's the Chief and a conservative he sort of has an automatic crack at that leadership role, despite being nineteen years Scalia's junior on the Court.

And he's led the conservatives in ways differently from what Scalia would have done. He's much craftier and more tactical than Scalia, more willing to say anything in terms of legal reasoning and much less interested in just saying what he thinks come hell or high water. Where Scalia is shrill, Roberts is savvy. Now, sure, he may have influenced Scalia to become a bit more self-servingly hackish, but that doesn't mean there aren't still differences between the two of them.

And, what's more, in the past week Roberts has started to show himself uncomfortably willing to not vote with the conservatives. He voted with the liberals in Arizona v. United States on Monday, as well as in the Stolen Valor Act case today, a case about a cross on public lands in La Jolla, and obviously in the health care ruling. Why's he doing that? I'll get to that later, but for Scalia's purposes it might not matter. Back in 2005, when Chief Justice William Rehnquist died and opened a vacancy in the central seat on the bench, and extremely conservative President George W. Bush had the chance to appoint his replacement, a lot of people thought that Scalia deserved that spot. He was, after all, already the leader of the conservative movement on the court, and considered one of the best legal minds in the nation, especially on the conservative side. I wouldn't be surprised if Antonin Scalia was among the people who thought Antonin Scalia should've become Chief at that point. And he didn't. Roberts did. Now, Scalia is really committed to his ideological struggle, and I bet that his perception of Roberts as a valuable ally in that struggle allowed him to minimize his resentment of Roberts out of solidarity. But now that Roberts not only has been leading the conservatives very differently from how Scalia would lead them, he's outright defecting to the other side!

Long story short, I think Scalia is getting really pissed off at John Roberts. It's making him get angry, and even more strident than usual. I sort of wonder, actually, with these last several cases in which Roberts has been actually defecting, if Scalia isn't starting to feel the same thing that William Brennan felt after the Rehnquist Court got started: the endless frustration of writing dissents. Maybe, just maybe, he's starting to feel that he's losing, that Roberts isn't actually going to help him radically reshape the Court's jurisprudence. This is similar to my last round of wishful thinking about Scalia getting a bit hopeless on Monday, and I still think it's wishful thinking, but I want to keep an eye on this trend going forward.

So, what's going on with Roberts himself? Well, there's just the very basic he's-being-a-crafy-bastard thing, which is not even a little bit of a departure for him. He got to write about as conservative a ruling in terms of the Commerce Clause as he could possibly have done, while avoiding the backlash from the left that would've resulted from siding with the dissent. But I think there might be another aspect to it. For a long time, people on the left have talked about Philosopher-King Anthony Kennedy. But Kennedy was in the dissent in today's ruling! That almost never happens. Today people are talking about how this is really the Roberts Court, how John Roberts is reshaping American jurisprudence in his own image. He's been surprisingly successful at that as the not-median Justice prior to today, but you can't really own the Court unless you can at least occasionally be the pivotal vote. By moving himself to the center on this issue, Roberts makes it a substantial part of his legacy, and one that will probably be remembered favorably down the road. He presents himself as a reasoned, reasonable man who doesn't just reflexively vote the Republican position on every issue, who can craft a good sensible compromise ruling.

Now, one interesting thing about this ruling is that it's going to make Roberts the focus of conservative ire for just about the first time. Many right-wingers will accuse him of being "the next Souter," a reference to the way Republican-appointed Justice David Souter moved to the moderate left wing of the Court during his tenure there, disappointing conservatives. And I think it's worth keeping an eye on the possibility that they'll turn out to be right. This week was the most moderate I've ever seen Roberts vote on the Court, which suggests the possibility, at least, that he's moving away from the hard-right and toward the center. And it's a possibility, at least, that he won't like being criticized so harshly by his former supporters, that it will kind of alienate him from them. Again, like with the speculation regarding Scalia, it's probably wishful thinking. Probably he's just trying to lull us all into a false sense of security, deliberately pretending to be moving toward the center while in reality laying the groundwork for the forthcoming radical conservative judicial revolution. But again, I think it's worth keeping an eye on whether this trend continues.

I said I'd get to Kennedy, and so I will. On Monday he sided pretty consistently with the liberals. In fact, this week he's joined Roberts in joining the liberals every time except the health-care case. And the dissent he joined in the health-care case was extremely strident, more than his typical style. So, what's he up to? Just trying to keep us guessing? Getting pissed off at not being Philosopher-King anymore? But in that case, why not just join the majority today and keep himself important? Who knows!