No sooner had the health care decision emerged in late June than a damaging leak, apparently coming from within the court family itself, revealed a level of bitterness and recrimination not seen previously in the court under Chief Justice John G. Roberts, Jr. The Chief Justice himself was the primary target.
With three months this summer off for travel and withdrawal, tempers may have cooled, but observers will be watching closely as the new term unfolds for signs that the rift will continue and possibly affect the court’s working relationships, if not the actual outcomes in decisions.
Once on the bench Monday, the Court proceeded to hear its first cases with no hint that anything had changed, in style or demeanor, and the Chief Justice made a pro forma announcement that another term had begun.
History has shown that, when disagreements run deeper than simply differing views on how major cases should be decided, the court as an institution is at least temporarily impaired in its work. The well-known personality conflicts in the court under Chief Justices Warren E. Burger and Fred M. Vinson left their negative marks on the deposit of the court’s work.
But, if heavy controversy is to blame for what happened at the end of last term, then the court might well be at risk of significant disharmony as the new term unfolds. The reality is that the next nine months will be at least as controversial as last term was.
The justices will face a renewed effort to end the use of race as a factor in admissions to public colleges, a spreading effort to get the court to overturn the most important voting rights law in U.S. history, and a brand-new effort to gain marriage equality for gay and lesbian couples. No one expects that the court would turn out to be unanimous on any one of those issues, so the question remains how any resulting split will influence the internal dynamics of the justices’ decision-making.
In some ways, this may well provide a basic test of the leadership of Chief Justice Roberts in his eighth term in the court’s center chair. Although the Chief Justice, like his colleagues, has but one vote in the decisions, the other justices do look to their Chief to set the tone of the place and to keep order even when warring factions emerge.
Without knowing who, if any, of the other justices had a role in the leak about the background maneuvering over the health care law, the Chief Justice may well have been wounded – at least temporarily – as a peacemaker and a builder of consensus. He is younger than most of his colleagues, but his very position carries with it a burden – one that Roberts has gladly assumed – of taking charge of the court when leadership is in demand.
Some of the justices have sought, over the summer, to discount talk of internal dissension, but it is doubtful that those efforts have yet succeeded in overcoming the jarring effect of the claim that the Chief Justice switched positions on the health care case at the last minute in an act of political expediency.
With politics in the rest of Washington, and perhaps even across the Nation, in a deeply polarized state, the court may be the one institution of government least able to maintain its reputation if it acts in that same way. The American people, it is plain, expect more of their judges, and especially, of their Supreme Court.
A secondary issue is now emerging in the wake of what happened just three months ago, and that is whether the Chief Justice is in fact moving more toward a centrist stance on the court, as a way of trying to alleviate the division that was so much on display. He has cast consistently conservative votes on most major social issues, but the suggestion is that he now sees the need to separate himself from the strong conservative faction that has tended to dominate the court’s decisions during his tenure.
Among the other justices, there are new issues of how they will react: will some of the more liberal justices vote more often with the Chief Justice if that encourages him more toward the center (as at least some of them did on parts of the health care ruling); will Justice Anthony M. Kennedy, in reaction, gravitate more into the fold of the conservative bloc (as he did, somewhat surprisingly, on health care), will the two newest justices, Sonia Sotomayor and Elena Kagan, assert themselves more energetically as agents of compromise?
On the three huge controversies that loom as the dominant tests of the new term, it has already been clear from decisions in recent years that the court’s members are quite at odds over the use of race in public policy-making, and over the constitutionality of the 1965 Voting Rights Act.
But there is little to go on to indicate how the court will react to the same-sex marriage issue – now just reaching the court in cases testing the constitutionality of California’s “Proposition 8” banning such marriages, and the constitutionality of the 1996 federal law, the Defense of Marriage Act, shutting gay couples who are legally married under their own states’ laws out from any to federal benefits that go to married couples, ranging from the filing of tax returns to Social Security survivor benefits.
While the court moves into those controversies this month, the future shape of the court might well be influenced by what happens a month from now when the presidential election takes place. There is little doubt that, if there are vacancies on the court over the next four years, there would be very different nominees coming from the winner of the White House – President Barack Obama or former Massachusetts Governor Mitt Romney.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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