With Justice Stevens’ retirement, what is the future of the Roberts Court?  Responding to critics, Jeffrey Rosen and I introduce some realism into debates over what one can expect out of the Supreme Court.  You can read what we say on the subject in our recent piece in The New Republic. http://www.tnr.com/article/politics/the-battle-over-the-court


During her confirmation hearings Justice Sonia Sotmayor insisted that the law decides cases, not a justice’s background or ideology.  Linda Greenhouse recently expressed hope that Sotomayor will abandon that line on the Court.  But why?  What could be more instructive than watching Supreme Court justices reaching opposing results while claiming to apply the same law neutrally?

Writing this weekend in The Opinionator, the New York Times’ on-line adjunct, Linda Greenhouse noted the superficial affinity between Sotomayor’s and Chief Justice John Roberts’ views of the law.  Roberts in his confirmation hearings hewed to the neutral law and neutral judge line, famously saying that “Judges are like umpires. Umpires don’t make the rules; they apply them.”  After the flap about her prior remarks that a judge’s background influenced decisions, in her confirmation hearings Sotomayor also took the neutrality line on law and judging.  She appeared to disavow the very characteristic President Obama identified as important to a good justice:  empathy.

But Greenhouse looks at a recent ruling of Sotomayor’s, and expresses the hope that “she does understand, after all, that something beyond an abstraction called “the law” determines how judges behave.”  The basis for Greenhouse’s hope was that Sotomayor signed on to a “statement” Justice John Paul Stevens wrote in the decision to deny a stay of execution to John Allen Muhammed, the D.C. area sniper recently executed by the State of Virginia.  In that statement, Stevens complained about the practice of setting execution dates for inmates before their appeals to the Supreme Court had run their course.

I’m not sure why Greenhouse wants Sotomayor to acknowledge that “something beyond an abstraction called ‘the law’ determines how judges behave.”  Perhaps simply because Greenhouse believes this is true – and if so then she is surely right, at least with regard to salient tightly-balanced Supreme Court cases.  (On the other hand, one might hope for the sake of the rule of law that Greenhouse is not right in countless cases faced by lower court judges.)  But wanting Sotomayor to acknowledge the fact is an entirely different matter.  It is less clear why Greenhouse wants this.

From the baloney fed the public by Supreme Court nominees at their confirmation hearings, one can only assume that the public itself wants to believe “an abstraction called ‘the law’” decides Supreme Court cases.  If not, why would the nominees take this line so devoutly?  Perhaps Senators who must do the confirming believe it, and don’t care what their constituents think, but this story is a little hard to buy.  One must assume nominees say this because it resonates with the public.

At the same time, one is wise to recall Robert Bork’s defeat in just such circumstances.  As I make clear in my chapter 7 of my book, The Will of the People, Bork’s nomination faltered on the fact that the public cares about the results of Supreme Court decisions, not the methodology by which they are reached.

Given the fact that so many conservative results lately are rendered under the supposed neutrality of the law, what Greenhouse really might have hoped is that Sotomayor would hew to the neutrality line while regularly voting the opposite way of the Chief Justice.  Imagine that:  Two Justices, each claiming fidelity to the same neutral and dispositive law, reaching wildly-differing outcomes.  How could that be?

Now, that would be something to think about.


The Obama Administration has been slow to fill federal judicial vacancies.  This may be in keeping with the President’s view that social change should occur through the democratic process.  But he should bear in mind that the long-term fate of social change often rests in the courts, which can step on – or ratify – the work of political movements.

The New York Times reported this weekend on the Obama Administration’s lethargic rate of judicial nominations.  In addition, key personnel in the White House counsel’s office responsible for such appointments are departing.  And the Senate has yet to confirm Christopher Schroeder, the nominee for the head of the Office of Legal Policy, which also bears a large part of the burden of vetting judicial nominees.

One suspects that among the many issues this Administration must juggle, the judiciary is not a top priority.  The Administration’s response to criticism about the pace of judicial appointments is that it is focusing on the confirmation rate, not the appointment rate.  But it is no secret the President places his higher hopes on politics and the power of democratic change, rather than the sort of legal liberalism of the Warren Court years.

Still, the President would be wise to recognize that courts and social movements have a symbiotic relationship. To state the obvious, judges can use their power of judicial review, and their role as statutory interpreters, to wreck havoc with the handiwork of politics.  Consider, for example, what the Supreme Court has done to the entire Guantanamo policy.

More important still, courts can ratify the work of political movements.  The New Deal’s shift to national control of the economy took lasting hold because judges changed their entire interpretive approach to accommodate it.  When judges buy into political change, such change becomes part of the very tissue of the law.  In this way, political accomplishments persist long after their proponents have departed their elective offices.

When a President’s agenda is primarily domestic, as is Barack Obama’s, judicial allies are essential.  Be it health care or the regulation of financial institutions, these regulatory changes ultimately will depend upon judges for their interpretation and implementation.  A hostile judiciary can tear a regulatory regime to pieces; a favorable one can enshrine it.

Simply put, it is not an either-or proposition:  judicial or political change.  The two work in tandem.  It’s both fine and appropriate to focus on the political.  That’s where one’s legacy is made.  But whether that legacy endures often depends, in the final analysis, on the courts.