Legal Experts Weigh In on Court Decisions

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Law professors Jeffrey Rosen and Doug Kmiec discuss decisions from the first full session of a Supreme Court that now includes Chief Justice John Roberts and Justice Samuel Alito.

MELISSA BLOCK, host:

Now, a review of this Supreme Court term. The court wrapped up its session yesterday, overturning two school desegregation plans. In other key decisions this term, the court stripped away a key part of the McCain-Feingold campaign finance law. It upheld a federal ban on a certain abortion procedure. It limited the rights of employees to file pay discrimination suits. And it ruled against the Bush administration on regulating greenhouse gases.

Joining us to talk about this year in the Roberts Court are Jeffrey Rosen, law professor at George Washington University, and Douglas Kmiec of Pepperdine University. Welcome back to you both.

Professor JEFFREY ROSEN (Law, George Washington University): Good to be here.

Professor DOUGLAS KMIEC (Law, Pepperdine University): Good to be with you.

BLOCK: Jeffrey Rosen, I want to start with you. This was the first full session with both Chief Justice John Roberts and Justice Samuel Alito on the court, replacing William Rehnquist and Sandra Day O'Connor. Do you see a rightward tilt to the Roberts Court?

Prof. ROSEN: Well, there certainly is a rightward tilt because on a whole series of issues, from abortion to religion to affirmative action, Justice Anthony Kennedy is a few degrees to the right of the previous swing justice, Sandra Day O'Connor.

But it's interesting that on all of these issues, Kennedy has moved right only in ways that a majority of the country is likely to support. There's unlikely to be the kind of dramatic backlash against the court that some liberals are hoping for, unless the court moves even further to the right. And in that sense, Justice Kennedy is a majoritarian.

BLOCK: Douglas Kmiec, what do you see? What do you detect in Justice Kennedy's rulings as the swing justice?

Prof. KMIEC: Well, I agree with Jeffrey. I think his inclinations are largely coinciding with perspectives of the American people. And I think that's something actually that Justice Kennedy strives for that he wants the jurisprudence of the court not to be abstract - legal rules or policies that are separate from the human condition.

And so while he's affirming the principle, he wants to also deal with the human condition as we know it and as he knows it, and wants to keep the law connected to that. And that makes a difference in terms of a conservative perspective.

BLOCK: I want to talk to you both about the role of Chief Justice Roberts. And Jeffrey, I want to go back to something that you told us during Roberts' confirmation hearing in 2005. You said liberals should be relatively relieved that they have a Roberts rather than a Scalia and Thomas. But I was just looking at some statistics on SCOTUSblog, which say that Roberts, this session, agreed with Antonin Scalia, 91 percent of the time, agreed with Clarence Thomas 88 percent of the time.

Prof. ROSEN: Was I too optimistic about Roberts? I don't know. My wife actually says that I have a man-crush on him, so perhaps it was. But I have to say the reason that I still think it was right is because in case-after-case this term, Roberts tried to preserve precedents that Scalia and Thomas would have gutted and overturned.

In the partial abortion case, he wanted to preserve the previous case striking down state bans on partial birth abortions. They wanted to overturn it. So in the campaign finance case, they want to rethink campaign finance from the ground up, he wanted to preserve that important precedent.

Now, it is true that Roberts promised at the beginning of this term to seek unanimity and consensus and narrow opinions, and he's not succeeded in that goal, partly because his colleagues don't seem to buy into that vision.

So I refuse to give up hope yet in Chief Justice Roberts and I do think regardless of whether he continues to vote with Scalia and Thomas, we'll just see someone who has more respect for the court as an institution as ultimately more concerned about how it fits into society than Scalia and Thomas are.

BLOCK: Douglas Kmiec, what do you think?

Mr. KMIEC: Well, I think Jeffrey's a tough grader. I'd give the chief justice very high marks for his work this term. Chief Justice Roberts has basically said that he wants an institutional court and he wants each case decided on its own bottom.

And by virtue of that, he is much closer to the model of judicial restraint than justices of the liberal or conservative perspective that want to see the court implement a particular political philosophy. And for that reason, Roberts is able to bring Kennedy along much more consistently than the late Chief Justice Rehnquist was able to do.

BLOCK: We saw, and in some cases heard, a number of blistering dissents from the liberal wing of the court, a number of them read from the bench. Did you get a sense we were seeing more of that than we had on previous terms? Jeffrey Rosen?

Prof. ROSEN: We did indeed. The whole dynamics of the court have been transformed. This term, there was a sudden sense on the part of the liberals that the court really had shifted that in cases where they used to be able to win with Justice O' Connor, they were now going to lose with Justice Kennedy.

That, combined with the fact that Justice Roberts is a much more energetic polemicist than Chief Justice Rehnquist. He's willing to really go for the jugular and the liberals responded in kind. This is clearly the sign of a group which is, has taken each other's measure, concluded that the dynamics had shifted, and are not going to hold back in challenging each other in the strongest terms.

BLOCK: And in fact, you had the oldest member of the court, Justice John Paul Stevens, in his dissent yesterday in the desegregation case, saying it is my firm conviction that no member of the court that I joined in 1975 would have agreed with today's decision. Douglas Kmiec?

Mr. KMIEC: I think much of that harsh language is in dissent. And while none of it is personal or ad hominem, I think the most important thing is that the chief justice and Justice Alito have not responded in kind. They've basically put out their arguments in a very no-nonsense, very professional, non-recriminating way.

But there is a noticeable improvement in the tone. While Justice Scalia still writes very strongly, Justice Stevens does, too, I think the fact that the majority is prevailing but prevailing without answering in kind is good for the institution and is healthy in the long term.

BLOCK: Okay. Douglas Kmiec and Jeffrey Rosen, thanks to you both.

Prof. ROSEN: Thank you.

Mr. KMIEC: Good to be with you.

BLOCK: Douglas Kmiec is a law professor at Pepperdine University, Jeffrey Rosen teaches law at George Washington University.

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