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Narrow Minded

Publication Date: 
July 09, 2008
The New Republic
Jeffrey Rosen

Dean Larry Kramer is quoted in The New Republic in an analysis piece by Jeffrey Rosen about how a Democrat-controlled government would impact the Supreme Court headed by Chief Justice Roberts:

In 2006, at the end of his first term on the Supreme Court, John Roberts told me and other journalists that his goal as chief justice would be to promote unanimity and collegiality by encouraging his fellow justices to converge around narrow decisions with few dissents. During his first term, Roberts succeeded impressively: More than half of the Court's opinions were unanimous, and only 13 percent were decided by a 5-4 vote.

The polarized Supreme Court term that ended last June, however, looked very different. Only 38 percent of the Court's decisions were unanimous, and 33 percent were decided 5-4, the highest percentage in recent years. Moreover, in cases striking down affirmative action and campaign finance reform, Roberts and his dissenting colleagues attacked each other in unusually personal terms. Noting this, some liberal bloggers and journalists argued that Roberts's call for unanimity had been a charade. Emily Bazelon of Slate wrote that Roberts didn't actually care about "unity and restraint" and that he would become only more extreme over time.


n their eagerness to dismiss Roberts as a hypocrite, liberal critics have suggested that it doesn't matter whether conservative opinions are based on narrow or broad reasoning; all that matters is the bottom line. But this judgment, too, is shortsighted. Even if Obama wins the White House and has the opportunity to replace one or two retiring liberal justices, the Court's ideological makeup is likely to stay the same for the foreseeable future: four liberals and four conservatives, with Kennedy in the middle. If Roberts succeeds in promoting narrow, bipartisan opinions, the Court is unlikely to resurrect the Constitution in Exile and declare war on a progressive Congress for the first time since the New Deal era. By contrast, if Roberts fails and the Court gets in the habit of handing down sweeping conservative opinions by polarized 5-4 majorities, many of the health care and environmental reforms that progressives hope for from a Democratic president and Congress might be struck down by the Court.

As Larry Kramer, the dean of Stanford Law School, puts it, "Once solidly in power, Democrats are more likely to push the envelope in areas like the environment and health," rather than civil liberties, and a conservative court could push back by holding that Congress lacks the power to regulate matters previously left to the private sector.