A Stealth O'Connor or Souter After All?

Marty Lederman marty.lederman at comcast.net
Fri Aug 5 07:21:35 PDT 2005

Me, I'd opt for effective over blustery any day of the week -- no matter what my politcal or jurisprudential goals might be.

In any event, your suggestion was that JR might turn out to be another SOC or DS.  My response was intended merely to say:  Not likely.  (I should add, however, that I am given some pause -- and a touch of encouragement -- not so much by Roberts's substantive work in cases such as Romer and Tahoe-Sierra, but by his ability to work so effectively with folks such as Walter Smith and Richard Lazarus -- and by their testimonies on his behalf.)  

Note:  There's a world of difference between O'Connor and Souter, too (see, e.g., Atwater ;-) ), but a much wider, and more important, gulf, to Rehnquist.  Sure he voted with the "liberal" side in cases such as Dickerson, Hibbs and Locke; but, call me cynical, I think that in each of those instances it was merely tactical, in order to control the writing "assignment."  Spot quiz:  Are there any cases in which Rehnquist's was the decisive vote for what we might call the liberal position?  (I imagine there are a couple -- but none comes immediately to mind.)

----- Original Message ----- 
From: <dpinello at jjay.cuny.edu>
To: "Marty Lederman" <marty.lederman at comcast.net>; "ConLaw Prof" <conlawprof at lists.ucla.edu>
Sent: Friday, August 05, 2005 10:05 AM
Subject: Re: A Stealth O'Connor or Souter After All?

> My point was a simple political one.  George W. Bush's campaign pledge 
> was for Supreme Court nominees in the mold of Scalia and Thomas.  
> Rehnquist was never the President's model.  Right-wing interest groups 
> relied on Bush's pledge, and they should be disappointed in Roberts as 
> a result.
> And for good reason.  Any justice not sharing their passion (some 
> might say animus) on culture-war issues is at best a crapshoot for 
> James Dobson & Friends.
> Dan
> ----- Original Message -----
> From: Marty Lederman <marty.lederman at comcast.net>
> Date: Friday, August 5, 2005 8:54 am
> Subject: Re: A Stealth O'Connor or Souter After All?
>> Has anyone so much as suggested that Roberts would be anything 
>> like Scalia?  From all the evidence I've seen, I'd say he is 
>> instead very much a modern-day version of Rehnquist (circa 1972), 
>> albeit without WHR's dubious background on racial issues, and with 
>> even more acute smarts and more impressive writing skills.  (Hard 
>> to imagine WHR writing Notes such as those Roberts published in 
>> the HLR -- or briefs of the quality of Roberts's.)   And yes, I 
>> can imagine Rehnquist, while at OLC, having assisted the SG in 
>> preparation for a case in which WHR did not agree with the 
>> Government's position -- or of doing the same in a law firm, had 
>> that been the route he chose.  As I suggest below, the fact that 
>> Rehnquist and Roberts are very comfortable playing within the 
>> establishment SCOTUS rules of engagement -- rather than throwing 
>> brickbats from the outside -- is what makes them much more 
>> effective than Scalia and Thomas. 
>> If Roberts is much more akin to WHR than to Scalia or Thomas -- 
>> and I think that he is -- what follows from that?  Well, I think 
>> Geoffrey Stone got it just about right in an Op-Ed last week 
>> (http://www.chicagotribune.com/news/opinion/chi-
> 0507270014jul27,1,1899219.story?coll=chi-news-hed), in which he 
> predicted that Roberts would likely vote to do most of the following:  
> to eviscerate Roe vs. Wade; reject the rights of homosexuals; narrow 
> the scope of affirmative action; expand the role of religion in public 
> life; and endorse the so-called "new federalism."  "But if he does," 
> Stone assures us, "it will be in an open-minded, rigorous, 
> intellectually honest manner, rather than as an ideologue whose 
> constitutional principles derive more from fiction and faith than from 
> legal reason."
>> Stone writes this as if it were a good thing, a reason to prefer 
>> Roberts to a Scalia/Thomas absolutist such as (presumably) Luttig, 
>> Jones or Brown.  Indeed, he concludes that if Roberts "is, in 
>> fact, the person I have described, . . . he should be warmly 
>> embraced as the best the nation could expect from this 
>> administration--a brilliant, decent individual with superb legal 
>> skills and without a rigid ideological agenda. Unless and until we 
>> learn otherwise, organizations like MoveOn.org and the Alliance 
>> for Justice should stay their hand and accept the 'win' that is 
>> John Roberts."
>> I have great admiration for many of Roberts's skills and personal 
>> attributes -- it's hard to imagine a better Supreme Court 
>> briefwriter and advocate, and from what I've seen, Stone is 
>> correct that Roberts is "a brilliant, decent individual with 
>> superb legal skills and without a rigid ideological agenda."  But 
>> "warm embrace" for his nomination?  I'm not sure why I should feel 
>> especially mollified by the fact that when Roberts rewrites the 
>> constitutional map as thoroughly as Stone predicts he may, he'll 
>> do so "in an open-minded, rigorous, intellectually honest manner." 
>> Because he is not a doctrinal absolutist, because he plays the 
>> game so well within the system, because he is so tactical and 
>> shrewd, and "rigorous," because he's so personable and well-liked 
>> and admired by his colleagues, and because he's not a 
>> flamethrower, Rehnquist has been far more effective at destroying 
>> many pillars of the Warren Court edifice than Scalia and Thomas 
>> could ever be.  (And it didn't start when he beca
>> me Chief -- recall that he was quite effective very early in his 
>> career, not merely in the famous "lone dissents" that paved the 
>> way for the Federalism "revolution," etc., but in the way he 
>> quickly transformed doctrines of, e.g., state action, 
>> justiciability, abstention, standing, remedial powers, implied 
>> causes of action, Executive power, statutory construction, habeas, 
>> etc.)
>> For these same reasons, from the standpoint of the Bush 
>> Administration, Roberts is not only a perfect nominee, he's the 
>> optimal Justice of the Supreme Court.  For those of us with a very 
>> different constitutional vision . . . I'm not sure we wouldn't be 
>> better off with "an ideologue whose constitutional principles 
>> derive more from fiction and faith."   (Five such Justices, on the 
>> other hand, would be another matter entirely . . . but we're not 
>> yet at that point.)  
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