The Supreme Court’s “Time Bomb with a Very Long Fuse”

June 27th, 2013

Adam Liptak has a characteristically insightful end-of-the-term piece on the long view of the Roberts Court. Adam argues that the Chief moves in slow steps, trying to build large consensus opinions with broad majorities, only to cite those liberal votes later in moving further to the right.

The more meaningful way to look at the court is as a movie, one starring Chief JusticeJohn G. Roberts Jr. as a canny strategist with a tough side, and his eyes on the horizon. He is just 58 and is likely to lead the court for another two decades or more.

Chief Justice Roberts has proved adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories.

As examples of this progression, he cites the move from FEC v. WRLTF to CItizens United.

In 2007, for instance, when Chief Justice Roberts took a calculated step toward limiting campaign finance regulation, Justice Scalia accused him in a concurrence of effectively overruling a major precedent “without saying so.”

“This faux judicial restraint is judicial obfuscation,” Justice Scalia said.

Three years later, building on the 2007 decision, the court issued its decision in Citizens United, allowing unlimited corporate spending in elections. The chief justice had moved slower than Justice Scalia had wanted, but he got there.

Ditto for NAMUDNO v. Holder to Shelby County.

On Tuesday, when the court struck down a part of the Voting Rights Act, Chief Justice Roberts harvested seeds he had planted four years before. In his 2009 opinion, writing for eight justices, he allowed the Voting Rights Act to stand. But the price he exacted from the court’s liberal wing was language quoted in Tuesday’s decision that seems likely to ensure the demise of the law’s centerpiece, Section 5, which requires federal oversight of states with a history of discrimination.

In the decision, Chief Justice Roberts repeatedly quoted from his 2009 opinion. He took pains to note that eight members of the court, including its four liberals, had already agreed that “things have changed in the South” and that the voting law seemed at odds with principles of federalism and “equal sovereignty” among the states.

The liberal justices, he suggested, had joined him four years ago in building a time bomb with a very long fuse.

And this term, Fisher v. Texas to, perhaps Fisher II.

The chief justice helped plant new seeds on Monday, when seven justices, including two liberals, agreed to sign an opinion that over time could restrict race-conscious admissions plans at colleges and universities. Only the senior member of the court’s liberal wing, Justice Ruth Bader Ginsburg, filed a dissent.

Perhaps RBG is the only Justice onto the Chief’s shenanigans. She probably also knows that she won’t be around long enough to see these doctrines through. Or maybe she just sees the writing on the wall.

Update: Rick Hasen identifies perhaps another similar tactic with respect to Boerne v. Flores, a standard mentioned in NAMUDNO, but not in Shelby, except by implication. Rick introduced the concept of the time bomb years ago in an aritcle.

The failure to set the standard of review is no mere oversight by Chief Justice Roberts. The footnote appears deliberately inscrutable: the Court sidesteps an issue about the standard of review in Case 1, and in Case 2 the Court endorses Case 1’s analysis of the standard of review. And the rest of the opinion is not helpful either: the equal federal sovereignty analysis which the Court uses to kill Section 5 of the VRA is a Bush v. Gore-like one-day-only ticket.  Few other voting laws fit this pattern (though one could imagine the language provisions of the Voting Rights Act in Section 203 falling under this analysis).

I presume the Chief Justice obfuscated the standard of review in this case as a time bomb: in a future case he could cite to NAMUDNO and Shelby County fn. 1 for the proposition that the Court has held that the Fourteenth and Fifteenth amendment standards are the same, and then bootstrapping theBoerne standard into a Fifteenth Amendment case. Saying so directly would have made today’s controversial decision even more provocative than it is; obfuscation better serves the Chief Justice’s attempt to portray his decision as an act of judicial modesty rather than a radical restricting on Congress’s power against the states (more on that in my op-ed for The New York Times). A future opinion can still look back on the obscure footnote as having resolved a key issue. The time bomb explodes.