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Bar News - September 20, 2013

Book Review: The Roberts Court: The Struggle for the Constitution, by Marcia Coyle


New York: Simon and Schuster, 2013

Marcia Coyle, a lawyer and journalist, is the chief Washington correspondent for the National Law Journal, and has covered the Supreme Court for 25 years. The Roberts Court is her first book.

Coyle uses as a structure for the book a focus on closely divided (5-4) decisions in four areas to highlight the personnel issues and the processes of decision in these first years of the Roberts Court. She covers the background of each case, the players involved in bringing the case to the Court, the backgrounds of the Justices, and the processes, to the extent they can be unearthed, by which the decisions were reached. Coyle’s book is informative and useful for anyone looking for an overall picture of the Court’s operations. I have only one quibble: generally, she gives no case citations, creating additional work for a reader who wishes to delve further into the details of a case.

John Roberts became chief justice in October 2005. At his confirmation hearing, he said his tenure on the court would be marked by consensus, minimalist decision-making, and respect for prior precedents. Coyle structures her study of whether the court has met these goals as a detailed look at four cases decided from 2005 to the 2011-2012 term. She also provides brief descriptions of many other of the important decisions of that period.

She begins with two school cases involving racial issues, decided in June 2007. Segregation was no longer an issue; the issue here involved attempts to provide racial diversity in the schools. The four conservative justices held to a view that the Constitution was color-blind, and that racial classifications should play no role.

The four liberal Justices favored a distinction between using race to exclude, and using race to include members of minority races. Kennedy was the swing vote, arguing that color blindness is an aspiration, but the real world is different. Roberts’ first full term ended with much bitterness on the part of the liberal Justices with feelings “that Roberts’s publicly stated commitment to greater consensus through narrow decisions, and, in particular, to respect for precedents, had dissolved in the face of result-driven judging.” Ideology had become a basic driver in the Court’s decisions.

Coyle next takes up the Supreme Court’s decision that the Second Amendment provided for an individual right to possess arms, a right not connected to a militia. The Court could have decided the issue narrowly. There was no compelling conflict in the appellate courts, the Constitutions of 42 states protected an individual’s right to bear arms, and there was no Congressional action pending to threaten this right. The Court, as one law review article put it, “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”

While focusing on the Citizens United case for the 2008-2009 term, Coyle also included the Melendez-Diaz case, a progeny of the pre-Roberts Court Crawford v. Washington 2004 confrontation case, which had been unanimously decided.

Melendez-Diaz, decided by a 5-4 vote, required, in criminal cases, analysts who prepared reports used in evidence to be available for cross-examination, producing major changes in practice. Melendez-Diaz is an example of the minority trying to undo what the 2004 decision wrought. Citizens United, dealing with campaign financing and the disclosure of donors, was unusual in that it was held over to the following term for re-argument. In the end, the Court’s decision allowed corporations and unions to raise and spend unlimited amounts of money in political campaigns, and to do so without disclosure of the source of that financing. Coyle notes that the outcome depended critically on Justice O’Connor’s replacement by Alito.

Coyle ends with a discussion of the Health Care act, in which Roberts surprised everyone by voting with the majority to uphold a basic provision of that act. Roberts based his decision on the right of Congress to tax, rather than on the Commerce Clause.

In the introduction, Coyle summarizes her conclusions. The Roberts court, with its conservative majority, acts with a self-confident sense of its own power, with a disdain for Congress, without deference to elected and accountable officials, both local and national. Its decisions are not limited to the issues brought to them; the justices have no hesitation in raising questions not asked, nor do they feel restrained to resolve questions narrowly. And they are prepared to overrule precedents, even those a century or more old, as well as recent ones.

Unlike past Courts, the Justices reflect the policies of the presidents who appointed them. And yet, despite the resulting sharp, often passionate disagreements between them, the Rehnquist and Roberts Courts are among the most collegial in Supreme Court history. As one Justice explained, they have to live with each other for a long time.

Sam Silverman is a member of the New Hampshire and Massachusetts Bars, and a Ph.D. in the physical sciences. He is also the author of a paper on Crawford v. Washington and its progeny, which appeared in the New Hampshire Bar Journal for fall 2012.

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