Kabuki or dissent?

New York Times writer Linda Greenhouse has an interesting analysis of Justice Scalia’s criticism of Chief Justice Robert’s opinion in Citizens United.

In the campaign finance case, he accused Chief Justice John G. Roberts Jr. of “faux judicial modesty” for writing an opinion that in Justice Scalia’s view effectively overturned the court’s 2003 campaign finance decision “without saying so.” The clear implication was that the chief justice lacked the courage or honesty to overturn the precedent openly as Justice Scalia himself would have done.

“This faux judicial restraint is judicial obfuscation,” he said.

And Justice Scalia was scathing in his criticism of an opinion signed by Chief Justice Roberts that limited, but did not completely abolish, the right of taxpayers to go to court to challenge government expenditures that promote religion. Justice Scalia would have gone on to shut the courthouse door completely, not simply limiting but overturning the precedent that the new ruling invoked.

“Minimalism is an admirable judicial trait,” Justice Scalia said, “but not when it comes at the cost of meaningless and disingenuous distinctions.”

Why would he be so direct?  And why would the Chief Justice stop short of doing what Scalia suggests?

Chief Justice Roberts, operating on a long timeline at 52, may be responding to a different imperative. Openly overturning numerous precedents early in his tenure would invite criticism that the Roberts court has an agenda to “radically shift American law,” said Thomas C. Goldstein, a student of the court who argues there often.

So the Chief Justice has a long time to be there…he’s thinking about his future on the court.  Maybe there’s more politics to judicial law making than we give it credit?

Scalia has no such compunctions.  At 71, (though I don’t think he was much different twenty years ago) he’s preparing for the next case, now:

“I look at it as a bit of a kabuki dance,” said Professor Garnett, who clerked for Chief Justice Rehnquist and is close to the court’s conservatives. He said he had no doubt that Justice Scalia had “huge respect for the new chief as a person and as a lawyer.”

What is visible now, he said, is the latest iteration of the endless struggle between the need for stability in the law and the desire to correct previous mistakes.

“Different people who call themselves conservatives resolve that tension in different ways,” Professor Garnett said, adding that Justice Scalia was “laying down markers, making sure the arguments are out there to be used in later cases.”


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