The Inscrutable Roberts Court

The New York Times issues a fair criticism of the Roberts Court. Aside from producing more fractured and grimly partisan opinions than ever before, the Court fails to guide the lower courts towards a coherent jurisprudence:

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts. And it increasingly does so at enormous length.

With surprising frequency, the decisions show signs of simply poor politicking. Anyone with an experience in constitutional decisionmaking knows that the outcome is half of the battle: the stability of the doctrine, where egos truly come into play, is a much bigger fight, especially because the outcome is so often a foregone conclusion. Here, the Court’s recent jurisprudence suggests that Roberts, and his swing vote, Kennedy, simply cannot build workable coalitions, which are vitally necessary for the issuance of clear mandates to inferior tribunals.

The high Court’s decision in Bilski v. Kappos illustrates the problem with some poignance. Here, the Court had a choice between two simple outcomes — the patentability, or unpatentability, of abstract “business methods” processes — and Justice Kennedy, for the majority, chose neither, opting to leave the matter to the Federal Circuit. Patent practitioners (my colleagues, whose frustrations I understand despite not working in their field) should be livid. Worse, the decision shows all the hallmarks of a lost majority. Kennedy’s opinion is painfully short and opaque, as one would expect of a concurrence; Stevens’ concurrence is long, well-structured, and clearly reasoned, but with a few odd holes, as if part of it had to be changed in a hurry. Like a majority opinion gone awry. Previous Chiefs have commanded majorities by sheer force of will (NYT correctly acknowledges Chief Justice Warren’s monumental effort towards unanimity in Brown v. Board); Roberts clearly lacks that talent.

The problems deepen as the subjects get more controversial. FEC v. Wisconsin Right to Life is, as a former professor (who I shall not name but whose opinion is entitled to some deference) said, is either deliberately mendacious or fails to inform the reader of the critical distinction upon which the Court relies. Gonzales v. Carhart attempts to hide its political motivation by wading haphazardly into the complicated law of “legislative facts.” The resulting mess limits the case’s importance, except as a monument to Kennedy’s vanity. And Hein v. Freedom from Religion Foundation just… butchers the law of standing. I… ugh. I can’t. I just can’t.

Credit where it’s due: the only time the Court seems to reliably get doctrine right is when Justice Scalia is at the helm. Morrison v. National Australia Bank took the Second Circuit’s maddening jurisprudence on “foreign-cubed” securities lawsuits,* discarded clear doctrinal errors, gave the lower courts a brightline standard to employ, and closed the enforcement gap by kicking the responsibility for f-cubed regulation to the SEC, where it belongs. In response, Obama’s Congress broadened the SEC’s enforcement powers in the Frank/Dodd Act. This type of elegant two-step lawmaking shows how the branches should relate. Even Scalia’s controversial opinions at least have the decency to be follow logically. Say what you will about Heller; it’s clear how Scalia got there, and why, and no lower court can misread the analysis.

This is a problem the legal community (and its clients) will have to endure for some time. Roberts isn’t going anywhere, and with the next retirement (Ginsburg), Obama can do nothing but hold the line. But at least we get to write angry blog posts about it! Grrrrrrrrrrrrr!

* = Foreign plaintiff suing a foreign issuer over a trade executed on a foreign exchange.

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