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The Fall of John Roberts

July 30, 2007

John Roberts' tumble today at his Maine vacation home might be the perfect metaphor for his tenure as Chief Justice. (Of course, I join all Americans in wishing Chief Justice Roberts a speedy recovery.) Advertised by even some of his detractors as a first-rate intellect with an ideal judicial temperament, Roberts' unsettling term is bringing a firestorm of criticism from friend and foes alike. Worst of all, he's losing the American people.
One of the first indications of Roberts' fall from grace came from Jeffrey Rosen, George Washington University professor and New Republic legal affairs editor. In his 2007 PBS series and accompanying book, The Supreme Court, Rosen anticipated betters days for institution of the Court under Roberts' calm direction. Rosen painted a promising picture of Roberts as a worthy successor to the first Chief Justice, John Marshall, whose collegiality and search for consensus strengthened the Court during its turbulent formative years.

"Those of us who supported Roberts never denied his conservatism. The question was: Who among the candidates President Bush was plausibly inclined to appoint as chief justice would be most likely to avoid the radicalism of Scalia and Thomas and try to unify the Court? In his first term, which began in October 2005, Roberts entirely vindicated these hopes."

And then Rosen was mugged by reality in the Roberts term just completed. Rather than greater unanimity and continuity, the Roberts' Court casually tossed aside precedents and produced a fractured Court repeatedly hinging on the swing vote of the prima donna Anthony Kennedy. Rosen's buyer's remorse was clear on the pages of the New Republic. Roberts' butchery of the meaning of Brown v. Board of Education in the Seattle schools race-based admissions case drew the ire of Rosen and his fellow editors. And in the same July 23rd issue, Rosen aired his disappointment in a piece titled, "Will Roberts Ever Get Better?"

"Although Chief Justice John Roberts began the term by calling for greater consensus, a third of cases were decided by five-to-four votes, the highest percentage in more than ten years. The polarization inspired the four liberal justices to write some of their most passionate, incisive, and memorable dissents."

And they are not alone. Democratic New York Senator Chuck Schumer has had enough. Schumer, who sits on the Senate Judiciary Committee, said Friday, "There is no doubt that we were hoodwinked." Now, Schumer says, Democrats who were "too easily impressed with the charm of Roberts and the erudition of Alito" need to make clear that the rules are going to change for confirming Bush Supreme Court nominees. Throwing down the gauntlet to the White House, Schumer declared, "We should reverse the presumption of confirmation."
Such opposition should be expected from the likes of Schumer, who voted against Roberts' confirmation. But his Judiciary Committee Republican colleague Arlen Specter voiced similar concerns over the Roberts' Court devastation of stare decisis. Picking up on Justice Stephen Breyer's "especially forceful " critique of the overturning of eight Supreme Court precedents, Specter plans a review of the promises Roberts and Alito made about respecting precedent during Senate confirmation. "There are things he has said," Specter noted, "and I want to see how well he has complied with it."
Ultimately, of course, the American people will judge John Roberts and the legitimacy of his tenure. So far, the verdict doesn't look promising. A Washington Post/ABC News poll last week showed that 31% of Americans thought the Roberts Court had moved too far right in its first two years. Less than half (47%) now view the Court as "generally balanced in its decisions," down from 55% in 2005. With the blowback from the partial birth abortion and race-based school admissions cases, the Supreme Court could well be a supreme issue in 2008. The early signs suggest John Roberts won't be getting any new conservative colleagues after January 20, 2009.
But if the American people have an increasingly dark view of their new Chief Justice, one man has maintained a sense of humor. Stephen Breyer, the most vociferous liberal voice on the Court, answered Jeffrey Rosen's question. "Will he do better in the future? He can join my dissents!"

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Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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