The Roberts Court: The Struggle for the Constitution Read Online Free PDF

modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly? Will you be a very conservative judge who will impede congressional prerogatives but does not use the bench to remake society, like Justice Rehnquist? Or will you use your enormous talents to use the Court to turn back a near century of progress and create the majority that Justices Scalia and Thomas could not achieve?” 9
    That question was very much on the minds of the justices and their clerks on that first Monday of Roberts’s first day as chief justice of the United States. As the coming years and cases would show, the answer to the question would be: Roberts shares some of the qualities of all of those justices, and he is unafraid to deliver a major “jolt” to the system if he disagrees with the law’s direction.
    During his confirmation hearings, Roberts had said he admired Chief Justice John Marshall, the nation’s fourth chief justice and considered its greatest. He spoke of Marshall’s ability to achieve consensus among his colleagues. From 1801 until 1835 when Marshall died, the Court generally did speak with one voice and often in Marshall’s own voice. Of some 1,000 opinions during that period, Marshall wrote more than 500.
    Some senators pressed Roberts about the large number of 5–4 decisions and separate concurring and dissenting opinions being issued in recent years. By the end of his hearings, Roberts had made clear two goals as chief justice: greater consensus on the Court and minimalism—a preference for narrow decision making.
    As he would explain in a speech in the spring of his first term, “If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case. Division should not be artificially suppressed,but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.” 10
    Consensus, minimalist decision making, respect for prior precedents—Roberts had laid down the markers of his tenure on the Supreme Court.
    As the first term of the Roberts Court got underway, the docket offered a trove of potential blockbuster cases that could test Roberts’s triple goals. Awaiting arguments were cases involving a minor’s access to abortion, disabled prisoners’ right to sue states under the nation’s law against disability discrimination, a clash between the federal government and Oregon’s assisted suicide law, and religious use of a hallucinogenic tea containing a drug banned by federal law. And waiting in the wings was a case likely to define the term: an appeal questioning the legality of the Bush administration’s military commissions for trials of Guantánamo Bay detainees.
    The justices had moved only through their first session of oral arguments when news broke that White House counsel Harriet Miers, nominated to replace retiring Justice Sandra Day O’Connor, had asked that her nomination be withdrawn. President Bush wasted no time in naming a successor, and on October 31, he turned to a contemporary of Roberts for the nomination: Samuel Alito Jr., fifty-five, a judge on the U.S. Court of Appeals for the Third Circuit. In 1981, the same year Roberts joined the Reagan Justice Department, Alito, a former federal prosecutor, began work there as an assistant to the solicitor general and later, in a promotion, as deputy assistant attorney general in the Office of Legal Counsel—the same office in which Chief Justice Rehnquist and Justice Antonin Scalia once had served as Nixon appointees.
    The Alito confirmation, however, was months away, and the Court had a high-stakes docket to confront. O’Connor and the rest of her colleagues were in an unusual position that fall. Neither knew when she would be leaving the bench. And her votes in cases would be effective only if the decisions were issued while she was still sitting.
    As the term unfolded, the new