All of the law blogs on the internet are exploding with analysis about how the 2006 term is the sign of a major revolution in Constitutional Theory that will undo a lot of the moderate-conservative work of the Rhenquist Court (1985-2005). Balkanization, SCOTUSblog, The New York Times here and here, Washington Post, Prawfsblawg, Georgetown Law Center (video), Law.com, Newsweek, The Huffington Post, LA Times (By Erwin Chemerinsky of Duke Law), WSJ, and UChicago Law School Faculty Blog here and here (my favorite).
Well, the concensus is that this court has veered farther to the right than any courts in recent history. Democrats and republicans alike were drawn in by the magnetic personality of Judge John Roberts during his confirmation hearings but two years later, we see the true conservative ideology of Chief Justice John Roberts. My mom, who knows very little of constitutional theory quipped during the Harriet Miers controversy, “How could President Bush appoint someone so bad after appointing someone so good?!” Well, the same notion of blind-faith was given to Judge Roberts by a lot of people while he was in his confirmation process, leading to a larger vote (77-22) than his friend on the court, Samuel Alito (58-42). The smooth-talking (and funny!) Chief Justice has now turned the court towards a dangerous precedent that can only lead to a significant period of constitutional distress.
The Washington Post noted in an article just after he was nominated:
For the White House, the 50-year-old appears to be the ultimate confirmable conservative. As a replacement for O’Connor, a centrist who voted to uphold abortion rights and affirmative action, he would probably move the court’s overall balance to the right. But he would do so without some of the verbal pyrotechnics that have characterized the opinions of conservative Justice Antonin Scalia.
They turned out to be 100% correct. In all the conservative victories, Carhart, Hein, Ledbetter, and Seattle School District, Roberts remained unusually quiet. Unlike Justices Scalia and Thomas, if Roberts has a minor disagreement with the majority opinion he is rarely (never, so far) willing to author his own concurring opinion stating his reasons for disagreement. He authored only 10 pieces of writing last year, a low for justices. Check out the data below (total, majority, concurring, dissent):
|Stevens||29, 7, 8, 14|
|Scalia||23, 8, 7, 8|
|Thomas||23, 7, 8, 8|
|Breyer||19, 8, 5, 6|
|Souter||17, 7, 5, 5|
|Kennedy||14, 8, 5, 1|
|Ginsburg||14, 7, 3, 4|
|Alito||12, 6, 2, 4|
|Roberts||10, 7, 0, 3|
Keeping in mind that my methodology was highly unscientific (I got them from my index), I think the results are rather interesting. The average number of opinions is 18 (17.88), meaning Justice Souter is write in the middle. I am surprised by how quiet Justice Ginsburg has been. Even though she wrote the most riveting dissents that came down this year in Carhart and Ledbetter, she also wrote a below average number of opinions. It is not surprising that two of the court’s oldest members (Stevens and Scalia) have also been the two most prolific writers on the court. Conversely, it is normal to see newer members (Alito, Roberts) write fewer cases than their more distinguished brethren. I think it is interesting that almost all of the court’s pairs have written a similar number of cases. Scalia and Thomas both have 23, Alito and Roberts have 10 and 12, and the court’s most moderate members, Souter and Kennedy, have 17 and 14. The anomaly in this case is the duo of Stevens and Ginsburg, who have 29 and 14, respectively. Conversely, it is normal to see newer members (Alito, Roberts) write fewer cases than their more distinguished brethren.