Here's the Robert's Court

I have a similar photograph in the power points somewhere, but in case you haven't come across it yet - here's the current Supreme Court. It's called the Robert's Court because John Roberts is the Chief Justice (duh), the 17th in US history. A good way to walk through history is to look at each era of the Supreme Court (click here for another look at it).

If you are really ambitious you can look at how the composition of the court has changed under each Chief Justice, and at the list of the clerks that worked under each justice. That might be overkill though.

More to the point, here are a few items on the Roberts Court that might be worth discussing in class. Chief Justices have a special responsibility to look after the institutional viability and well being of the court, and each has their own way to do so. John Roberts has been Chief Justice for about 8 years now, so court observers have been able to start making educated guesses about his impact on the court and what motivates him.

- The NYT editorialized that under Roberts the court's conservatives no longer adhere to judicial restraint, but instead actively seek to imposed their views of proper public policy on the law. This means the under Roberts, conservatism on the court has been transformed. It no longer holds itself outside of politics, but is instead actively involved in it.

- The New Republic argues that Robert's decision in the Affordable Care Act decision was meant to place the court above politics. His primary intent was to ensure that the court would not lose legitimacy - and as a result the only real strength the court has - by being perceived as being just another partisan institution.

- A Huffington Post piece states that despite Robert's vote to uphold the ACA, the Robert's court has made landmark, activist decisions decisions overturning multiple precedences including cases involving gun control, campaign contributions, affirmative action and environmental protection. Many of these were accomplished with 5-4 votes, which suggest that Roberts sees little need to build consensus for these moves. The court's public support has waned as a result, which might be bad for its future strength.

- The Supreme Court may be growing increasingly contemptuous of Congress and the executive branch. Here's back and forth on that point.

- Party polarization is not just for Congress. The NYT reported that "more conservative justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans. And the more liberal justices are more likely than in the past to hire from judges appointed by Democrats."

- The clerks are apparently a secretive bunch who do not talk much at all about what happens in the courts. And when they leave the Supreme Court, clerks command top dollar on the market.

American Bar Association poll of experts shows that 85% expect Health Care Reform Law to be upheld - Why? Because of US v. Lopez

From the New Republic:

The experts ABA surveyed were unanimous in predicting that the four liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote to strike it down. Fifty-three percent said Anthony Kennedy would join the liberals, but a higher proportion, 69 percent, thought Chief Justice John Roberts would join the majority. Majorities of about 60 percent predicted that the other two conservatives, Samuel Alito and Antonin Scalia, would determine the law is unconstitutional.

. . .A more carefully reasoned explanation for why the law seems likely (although far from certain) to survive comes from Richard Primus, a former Ginsburg clerk who is now a professor of law at the University of Michigan. And it's an interesting explanation, if you're following this case, because the source of Primus' relative confidence is the very case that gives so many of the law's defenders anxiety: United States v. Lopez.

The subject of Lopez was a federal law banning gun possession near schools. The government cited its right to regulate interstate commerce as justification for the law. A five-to-four majority rejected that argument, saying that states could handle the matter on their own. In so doing, the majority, led by Chief Justice William Rehnquist, established a limit on the commerce clause power—something the court had not done since the New Deal. Critics of the Affordable Care Act hope (and advocates of the law fear) that the court’s willingness to limit the government’s interstate commerce power in that cause mean it might do the same in this one.

. . . Having already established that the power to regulate interstate commerce has limits, Primus suggests, they might not feel compelled to do so again. What’s more, the Lopez decision led to subsequent decisions—most important among them, Gonzales v. Raich—in which the court specified with more detail the limits of the commerce power. And the health care mandate falls clearly within them.

In other words, Lopez signaled a willingness to roll ball federal regulatory economic authority, something that hadn't existed since the New Deal. But, in this particular case, Lopez might make the justices more comfortable upholding the law.

More Evidence of an Ideologically Divided Supreme Court.

Partisanship and ideology influence which clerks are hired by which justice.

- Wikipedia: Law Clerks
- Wikipedia: List of Law Clerks.