The Chief Justice Sets A Standard

By E. J. Dionne Jr.
Tuesday, June 20, 2006

Is there a fight brewing among conservatives on the Supreme Court?

In a speech at Georgetown University law school last month that didn't get as much attention as it deserved, Chief Justice John Roberts laid out an approach to deciding cases that could disappoint those who like their court decisions bold and ideological.

Roberts's view could bring him into conflict with Justice Antonin Scalia, a fellow conservative who is absolutely certain what the Constitution means and is never afraid to say so.

The chief justice's speech defended the virtues of judicial humility: Justices should try to make the narrowest possible rulings and strive for unanimity, or something close to it.

"If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more," Roberts said. Thus the Roberts Rule of Orderly Judging: The less the court decides the better.

And there was this corollary: "The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground."

"The rule of law is strengthened," Roberts insisted, "when there is greater coherence and agreement about what the law is."

But common sense can be controversial. Many on both the right and the left think that the purpose of the Supreme Court is to lay out very broad principles and to decide as much as those principles demand -- or permit.

Scalia's theory of "originalism" holds that the one thing that matters is what the writers of the Constitution "originally" meant. That often seems to correlate with what conservatives want to do, although Scalia will occasionally ditch his devotion to originalism if he needs another way to get to a conservative outcome. That's what happened last week in a 5 to 4 decision expanding police search powers. A more libertarian approach, Scalia said, applied "in different contexts and long ago." So much for originalism.

In his 1996 book "Legal Reasoning and Political Conflict," Cass Sunstein, a law professor at the University of Chicago, described Scalia's approach (and that of the late liberal Justice Hugo Black) as placing "a high premium on the creation and application of general rules." Judges, in this view, should "give guidance to lower courts, future legislators, and ordinary citizens through clear, abstract rules laid down in advance of actual applications."

The problem with this, Sunstein argues, is that "rules may misfire, precisely because they are too rigid and . . . can go badly wrong when applied to concrete cases not anticipated when the rule was set down." Broad rulings, Sunstein writes, "tend to overreach."

In the past, judicial overreach was associated with liberals. But with conservatives now enjoying a majority on the Supreme Court -- it's likely to get more conservative if President Bush gets another appointment -- the danger of overreach comes from the right.

It's therefore important that Roberts seems to be setting his face against judicial activism. To propose that court decisions should achieve broad majorities is, in the current circumstance, to tell the court's conservatives that they have an obligation to temper their own passions and reach out to the liberal minority. To get 7 to 2, or 8 to 1, or 9 to 0 decisions, the court would have to avoid far-reaching declarations congenial to conservative doctrine.

Consider how Roberts's approach contrasts with what the court did in Bush v. Gore , the 2000 decision that made George W. Bush president. Justices David Souter and Stephen Breyer were desperately seeking consensus. They agreed with the pro-Bush judges that the recount in Florida should be conducted under uniform standards. But they insisted that Florida be given a chance to have the recount.

The court's narrow and -- let's call it what it was -- partisan majority told Souter and Breyer to get lost. Five justices wanted to end the thing and make Bush president. Imagine how much bitterness would have been avoided (and how respect for the rule of law would have been enhanced) if the court had instead sought, in Roberts's words, "greater coherence and agreement about what the law is."

No one can know how consistently Roberts will apply the principles he laid out in his Georgetown speech. The straight 5-to-4 ideological split last week on police searches was not encouraging. But if Roberts lives up to his Georgetown principles, he will justify all the votes cast for his confirmation by moderates and liberals. More important, he will win a place in history as the chief justice who ended the judicial wars.

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