Roberts Court Review
Vikram David Amar, in an article written for FindLaw, addressed the Roberts Court's early tendencies, beginning with the implications of the recent ruling upholding Indiana's mandatory voter ID law, many of them I addressed in my immediate reaction to the decision. Amar, however, parses the separate opinions written by three distinct trios in the case, and suggests that these fractures are a sign of a general lack of consensus on the High Court.
This is perhaps a bit surprising given the fact that Chief Justice William Rehnquist, Roberts' immediate predecessor, was also his mentor when the law school grad clerked for then Associate Justice Rehnquist. Once the lone ideological conservative on the Court, Rehnquist was frustrated by then Chief Justice Warren Burger's inability to find consensus in either victory or defeat. From 1986 through his death in 2005, Rehnquist brought more discipline and often more clarity in opinions that assumed a more ideological tone and arguably widened the divide between left and right among the nine sitting justices.
Roberts, in his confirmation hearings, suggested that he would like to heal these wounds, deciding cases narrowly and respecting past precedents. Thus far, he has missed on both counts, as the justices have scurried in multiple directions in cases concerning lethal injection, school desegregation, and the Establishment Clause, to name a few. Moreover, 24 of last year's 73 cases were decided by a 5-4 margin, the highest percentage of split decisions in recent memory. Amar suggests that it may be a function of the ideological differences between Justices Anthony Kennedy and Clarence Thomas. Both are habitual members of the conservative bloc, yet Kennedy is a swing vote and non-doctrinal, while Thomas is a strict constructionist and rarely strays from his right-leaning stripes.
Another early tendency of the Roberts Court is its "hostility" to facial challenges, or efforts to strike down laws prior to their implementation. Amar references the Indiana ID law once more, but also recent decisions involving political parties and ballot status in Washington State, along with late-term abortion bans. While potentially opening the door for later as-applied challenges, the author is skeptical of their success. For example, what is the likelihood that the dozen or so 90-year-old Indiana nuns will sue for the denial of ballot access last Tuesday? Moreover, how does a woman challenging a late-term abortion prohibition secure a decision in her favor while in the midst of a time-limited pregnancy?
David Hudson of the First Amendment Center assessed the Roberts Court on the grounds of the five freedoms, measuring the likelihood that the Court will revisit the current tests for Establishment Clause violations, commercial speech, and obscenity. Each of these precedents was established during the Burger years, two of them written by the former Chief Justice himself.
Hudson considers the Lemon Test most vulnerable. It established a three-prong test articulated on this blog previously to determine whether or not a given law violates the Establishment Clause. He quotes reputable constitutional scholar Erwin Chemerinsky, who suggests that the current Court's conservative bloc is ripe to enable more government aid to religious institutions, more religious involvement in government itself, and in the process overturn the Lemon Test. The Hein decision last year lends credence to this argument. Hudson rests his case on the two Ten Commandments cases from 2005, where Justice Sandra Day O'Connor deemed both displays in question unconstitutional. Should her replacement, Justice Samuel Alito, reverse course, the Lemon Test may be relegated to the nearest used car lot.
Commercial speech is afforded a lower threshold of First Amendment protection than is political speech, and many legal critics lament upon this inconsistency. Even though all but one of the current justices (John Paul Stevens) was not on the Court at the time of the prevailing Central Hudson case, and many of the remaining eight have criticized it in part, the author predicts that the Roberts Court will continue the practice of his predecessor and apply more stringent restrictions on advertising.
Finally, Hudson addresses the obscenity test established in the Miller v. California case. It requires that a challenged subject not appear to a "prurient interest," nor be patently offensive or without literary, artistic, scientific or political value. The first two prongs operate in the context of contemporary community standards, but in the age of the Internet, one must ponder whether we live in a single national community and therefore adopt uniform standards. This criticism aside, the author suggests that the Miller decision has not weathered the scrutiny of Lemon or Central Hudson, and is likely safe for the immediate future.