Whose Court Is It Really?

The Atlantic Magazine, January/February 2006

What are the early indications of what the Roberts Court will be like?

It’s not the Roberts Court—at least not yet. It’s still the Stevens Court.

Excuse me?

For a few weeks this past summer, between the death of Chief Justice William H. Rehnquist and the confirmation of John G. Roberts Jr. as his successor, John Paul Stevens was the acting chief justice. During those weeks nothing of consequence happened. But the brief accession of the eighty-five-year-old Stevens crystallized what has been obvious for some time: perhaps the Court’s left-most justice, he has over the past half decade become its key behind-the-scenes leader. And until I see evidence that Chief Justice Roberts has effected a coup, it will remain the Stevens Court in my book.

What on earth are you talking about? Isn’t this Supreme Court a conservative body?

Sure, sure. In some sense the Court is a conservative body. It’s not aggressively creating liberal social policy much anymore. And in some areas—the power of states relative to the federal government, for example—it flirts with an aggressively conservative approach.

But consider: In the past few years alone the Court has upheld affirmative action at the University of Michigan Law School, struck down state laws banning partial-birth abortion, upheld the sweeping new McCain-Feingold campaign-finance-reform law, affirmed federal power to prohibit the medical use of marijuana, and struck down the death penalty for the mentally retarded and for those who committed their crimes as juveniles. It has dealt two body blows to the so-called property-rights movement—last term holding that localities could seize private property for economic-development purposes if they paid appropriate compensation, and a few years ago rejecting an attack on the power of state governments to restrict development around Lake Tahoe. It has curtailed its earlier experiment with carving out broad immunity for state governments from lawsuits seeking money damages. It has asserted jurisdiction over military detentions at the Guantánamo Bay Naval Base, in Cuba. And it has entirely rewritten federal law relating to criminal sentencing, requiring that juries, not judges, make the key factual findings that determine how much prison time a convict may receive.

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