Yesterday, a Washington Post review of Uncertain Justice: The Roberts Court and the Constitution, by Harvard Law professor Lawrence Tribe and his former student Joshua Matz, ended with this observation:
[T]here is one place where Tribe and Matz find real clarity [in the current Court]: the shrinking availability of judicial relief. “One of the defining features of the Roberts Court,” they write, is “its willingness to leave plaintiffs and criminal defendants to whatever justice they can find beyond its doors.”
Setting aside the liberal morality play rhetoric, a number of commentators agree that the Court has been passing on cases that it once would have taken — and not just on Tribe and Matz’s chew toys. For example, some conservatives lament that the current Court has declined to hear one Second Amendment case after another, leaving conflict and confusion in judicial ranks. Then again, business interests are confused that this year the justices declined to hear a class action certification case that seemed to scream out for high court attention. There was intense conflict among the circuits. The judges who authored the appealed decisions seemed, in their written opinions, to be thumbing their noses at very recent high court precedents. What is going on here?
Here’s my guess. The clue is the 2012 Obamacare cases. The focus on those cases has been the Chief Justice’s convoluted ruling, finding that the tax was not a tax before finding that it was a tax. I think the key point — a least for seeing what is going on now — was the numbers. Parts of the law were upheld 6-3. Parts were overturned 6-3.
It looks to me as though Chief Justice Roberts has been — and continues to be — concerned that 5-4 decision after 5-4 decision is undermining the Court’s standing with significant segments of the public. Thus in the ObamaCare cases he secured a break in the liberal ranks on one issue and himself broke conservative ranks on another. In other hot-button areas where he believes a 5-4 decision is inevitable, he pushes the Court to pass on the case.
As I say, this is a guess. But an educated one. We have a number of court watchers in Ricochet’s ranks: I would welcome critiques of this theory.