Jeffrey Rosen: Roberts versus Roberts, Just how radical is the chief justice?

Last month, the Supreme Court handed down its most polarizing decision since Bush v. Gore. The 5-4 ruling in Citizens United v. Federal Election Commission called into question decades of federal campaign finance law and Supreme Court precedents by finding that corporations have a First Amendment right to spend as much money as they want on election campaigns, as long as they don’t consult the candidates. It was precisely the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.

In 2006, at the end of his first term on the Court, Roberts told me and others that he was concerned that his colleagues, in issuing 5-4 opinions divided along predictable lines, were acting more like law professors than members of a collegial court. His goal, he said, was to persuade his fellow justices to converge around narrow, unanimous opinions, as his greatest predecessor, John Marshall, had done. Roberts spoke about the need for justices to show humility when dealing with the First Amendment, adding that, unlike professors writing law review articles, judges should think more about their institutional role. “Yes, you may have another great idea about how to look at the First Amendment,” he said, “but, if you don’t need to share it to decide this case, then why are you doing it? And what are the consequences of that going to be?”

Since then, Roberts has presided over some narrow, unanimous (or nearly unanimous) rulings and some bitterly divisive ones. And so, it’s been hard to tell how seriously he is taking his pledge to lead the Court toward less polarizing decisions. Then came Citizens United, by far the clearest test of Roberts’s vision. There were any number of ways he could have persuaded his colleagues to rule narrowly; but Roberts rejected these options. He deputized Anthony Kennedy to write one of his characteristically grandiose decisions, challenging the president and Congress at a moment of financial crisis when the influence of money in politics--Louis Brandeis called it “our financial oligarchy”--is the most pressing question of the day. The result was a ruling so inflammatory that the president (appropriately) criticized it during his State of the Union address.

http://www.tnr.com/article/politics/roberts-versus-roberts

nt

and extreme 5-4 decision after another? :P