Getting a Feel For Roberts

Having ardently supported Chief Justice John Roberts' confirmation bid to the Supreme Court, I realized that I've spent little time actually reading to see how he's doing now that he's the new CJ. 

E.J. Dionne Jr.'s column today gives me an opportunity to reflect.  Dionne Jr. reviewed a recent speech by Roberts at Georgetown during which Roberts stated that, "Justices should try to make the narrowest possible rulings and strive for unanimity, or something close to it." 

Of course, Dionne Jr. relishes this opportunity to bash Scalia and his "orginalist" theory of interpreting the Constitution.  While I tend not to be so hard-and-fast in my opinions on the Justices, I would agree that I tend to side with Roberts' balanced and narrow approach to judging rather than Scalia's self-righteous and anachronistic "originalism."

But while Roberts seems to be less of an ideologue than even Rehnquist, recent decisions have come down in the predictable 5-4 fashion, with Roberts simply replacing Rehnquist's typical vote on the court.  Although always somewhat of a fence-sitter, Kennedy has become the new tiebreaker on today's court.  Could this mean Kennedy is changing his attitude so as to compensate for the loss of O'Connor? 

I'm overgeneralizing, but the new court could become extremely similar to the old court.  In terms of voting, I could foresee the following becoming true:  Kennedy = O'Connor, Roberts = Kennedy, Alito = Rehnquist. 

Dionne Jr. is a bit more optimistic.  He writes:

"But if Roberts lives up to his Georgetown principles, he will justify all the votes cast for his confirmation by moderates and liberals. More important, he will win a place in history as the chief justice who ended the judicial wars."

Is there really a judicial war, though?  Or has the court found a way to create a balance that reflects contemporary society.  Do we really want more unanimous or near unanimous decisions?  After all, our country is pretty divided on the most important issues of our day.  A split on the court mirrors society.  To me, this isn't a judicial "war."  It's reality.

Comments

[Marlowe]

What the court represents is a changing of the tide. It used to be much more liberal than it is now. Now, there is a changing of the guard, a conservatization of the Court. You won't see a realignment as Zach says. Instead there will be a shifting to the right. Now you will have Roberts and Alito = Rehnquist, and Kenney = Quasi and slightly more right wing Sandra Day O'connor. What that means is less fake rights for criminals, and no more patently unconstitutional race preference programs. Also, probably a tremendous narrowing of the fake right to privacy. What Roberts and Alito are going to be willing to do is to wheel and deal a little more than Scalia might do. This will mean decisions that don't overturn the fake right to privacy, but at least will prevent some babies from being killed. All in all, I'm happy, but what is needed is just one more Conservative for a nice 5-4 end to ridiculous things like: Miranda rights, exclusionary rules, and roe v. wade.

[zak is a gay disease]

zak is a gay diseasing filthy homo. he is a "moderate" which of course means he has to find a neurotic balance between sane and insane, and of course, is too frightened to stand for up to the cooky leftist wacko fringedog homos. he said he liked al gore's attempt to show us that he and his big government international america bashing pro-saudi socialist communist traitor movement is the right thing for america and the world. if only we would have sold our economy down the river to india and china and signed the traitorous filth suicide pact called the "kyoto protocol," says zak. WHERE IS THE OLD ZACH--THE SWAGGERING CONSERVATIVE WHO SUPPORTED BUSH BEFORE!

[Allen]

read the 9th amendment marlowe.

[marlowe]

as a matter of fact i have allen, and it doesn't say "The Supreme Court can skirt the legislative process by passing a bill," or, "The Supreme Court can construe a part of this Constitution to mean something that it does not," or, "The Federal courts can exonorate child rapists on made-up technecalities so that they can satisfy their perverted lusts on other children," or, "The terrorists have a greater right not to be listened into than an innocent American's right to not have a fiery jet fly into his or her office building."
The 9th Amendment was rarely applied until the pinko wackos decided that it meant that the Constitution is an optional document that can be vetoed by the 9 atheist commies whenever their hearts desire.

[Allen]

You are going a bit overboard with the rhetoric. The 9th amendment says that we as American citizens have rights that are not specifically articulated in the Constitution. Like the right to travel between the states, or have children, or to enter into marriage or other contracts, or to own property, or to practice a religion. None of these (I think) are explicitly mentioned in the Constitution but I would wager they are constitutionally protected rights. Maybe I am wrong. I am just writing off the top of my head, but I think there is a right to privacy in the Constitution; other amendments certainly point to the Framers respecting rights related to privacy. Does the right to privacy mean abortions are constitutional? Maybe not. I think Griswold is a reasonable decision, but Roe is more tenuous and I wouldn't mind the states regaining their jurisdiction over the question. It would force the American public to really make up their minds on the issue. Anyway, moral of the story. The 9th amendment protects constitutional rights that are not specifically mentioned in the Consitution. I think its existence helps to prove that the "Living Constitution" viewpoint is much more close to the Framers intent than dogmatic originalism or strict constructionism. The Bill of Rights itself is so fricking vague that they must have expected and intended that people would interpret it to fit with their times. If they really wanted to exclude the possibility for "Living Constitutionism" they would have been a hell of a lot clearer. Read any other modern constitution; they are much more long and specific about what they really mean.

[zak is a gay disease]

i don't know who you are allen, but that was a very reasonable, level-headed response as compared to marlowe's statements. i guess people should try to be more mature. In any event-just to let you know, you're gay dude

[Allen]

no, you are gay.