Commentary: Roberts and “a gang of 3”
on Jul 20, 2005 at 7:39 am
John G. Roberts, as a new Associate Justice, would have an instant opportunity to become a “swing vote,” in the style — though not necessarily with the same results — of Justices Sandra Day O’Connor and Lewis F. Powell, Jr. He could do so by becoming a part of what might be called a “gang of 3.”
The others in that “gang” could be Justices Anthony M. Kennedy and Stephen G. Breyer. As the Court moves more toward the conservative side, as a direct result of Roberts’ arrival, there is a real possibility of a new dynamic center made up of those three.
This does not represent a foolish dream of a moderate or a liberal who wants to hang onto a Court that would be no more conservative than the present Nine. Instead, it is a realistic possibility that could come from the style and instincts of “Justice” Roberts, who is more conservative than either O’Connor or Powell. The new man is not an Antonin Scalia or a Clarence Thomas. Neither, of course, is he a David H. Souter — so the Court’s conservative followers can relax if they harbor any fears of that.
Each Court of Nine is different — a truism, but an absolutely reliable truism. If the Senate approves Roberts, as seems most likely at this early point, he will bring change to the Court. And, most importantly, his arrival will bring change to every one of the Justices themselves. Unless Roberts were a forgettable Charles Evans Whittaker, which he definitely is not, he has the capacity from the outset to have a noticeable impact on his colleagues and on the new Court — as O’Connor and Powell did when they began.
Because Roberts is a nominee of President Bush, and the product of a selection process over which conservative activists had a major influence, there will be a tendency in some circles to suggest that he will find a natural place on the bench with Scalia and Thomas (the President’s favorites among the sitting Justices). That assumes that he will come under the influence, primarily, of those two. Tbat is not predictable, and may not even be probable.
Chief Justice William H. Rehnquist, in some sense a Roberts mentor (Roberts clerked for Associate Justice Rehnquist), does not always vote with Scalia and Thomas, and Roberts would not be expected to do so, either. Just as Rehnquist always has done, he will be finding his own place in the alignments that necessarily will form in the different sectors of the new Court’s work.
It would be natural for Roberts to grow comfortable casting his vote alongside Rehnquist. But that is not likely to be a long-term proposition, given the Chief’s health, and it is not likely to shape him in a mold that would fit for years to come.
Thus, the possibility is a Court in the new Term starting in October that has Scalia and Thomas, joined somewhat loosely by Rehnquist, on the most conservative wing, Justices Souter, Ruth Bader Ginsburg and John Paul Stevens on the most liberal wing, and Roberts somewhat loosely aligned in the center with Kennedy and Breyer.
Why Kennedy? Why Breyer?
First, a Kennedy “connection” for Roberts. On a Court somewhat more conservative without O’Connor, Kennedy’s influence seems sure to grow. He has a chance to become the new balance wheel, a role that was filled so routinely by O’Connor. (Even if there were to form a solid Rehnquist-Scalia-Thomas-Roberts phalanx, they would still need Kennedy to prevail, and he would not be with such a quartet automatically.) Kennedy also has more influence than is sometimes credited to him. He has a store of common sense that saves him from ideological rigidity, and that steers him away from agenda-driven voting. He has an even deeper sense of what history asks of the few who become members of the Court. Those are summonses to the use of sound judgment. Roberts, with the challenges of a lifetime appointment at the apex of the judiciary, might very well exhibit those same qualities.
Second, a Breyer “connection” for Roberts. Without being widely noticed, Breyer’s influence has been growing in recent years, as a direct result of his ingrained habit of judicial pragmatism. It is facile to count his vote, in advance, as being aligned always with the trio of Ginsburg-Souter-Stevens. He has made an independent way, and will continue to do so. With the new Court edging more toward the conservative, Breyer will be comfortable in a newly-forming center. It is his primary ambition to see that the law actually works, in the real world, and that is a goal seldom aided by abstract thinking or judging. Roberts, free to be his own brand of Justice, might well find Breyer a comfortable companion.
But, looking beyond the Rehnquist era, and the arrival of a new Chief Justice, where would Roberts be in that new Court? If Bush remains the President at that point, the ideological pushing-and-shoving that preceded Roberts’ selection this time would intensify. If Roberts in the meantime had not become a clone of Scalia and Thomas, the President’s conservative followers would insist on a new Chief Justice with more chance of being predictably in that mold. Moderates, if they had any influence, would be pressing for Roberts to be elevated, and a non-Scalia, non-Thomas nominee taking his seat as an Associate Justice. Liberals, of course, would have no say in the process, as they did not this time.
It is possible that, if a purer conservative were to be the next nominee, more inclined than Rehnquist to vote with Scalia and Thomas, the bew solidarity of that wing could perhaps exert more pull on Roberts, drawing him away from Kennedy and Breyer. Possible, but definitely not predictable.
What this final scenario suggests is that what may be most significant, in shaping Roberts as a Justice, would not be the replacement in the event Rehnquist retires, but the successor to Justice Stevens. A strong conservative in that seat could surely solidify the wing on the Right side of the Court, weakening the center noticeably.
