Abortion, Fourth Amendment Cases Will Test Chief Justice’s Consensus Building Skills

By Mike DeVine - Legal Editor
02/01/2007

The amazing consensus building power displayed by the new Chief Justice of the United States during his brief time on the court will be tested more when the court reconvenes next month than it was in the final months of the 2005 term and the first months of the 2006 term.

The latter term reconvenes on February 20, 2007 with two federal sentencing guidelines cases which play into the hands of Roberts’ consensus building skills. The rest of the term will not be so easy, as they delve in the reasonableness of searches and seizures under the Fourth Amendment and the so-called “right to privacy” in late-term or partial birth abortion cases.

The US Supreme Court, under the leadership of Chief Justice John Roberts, both before and after the replacement of the now retired Sandra Day O'Connor with Associate Justice Samuel Alito, went longer than it had in over 40 years without a major case being decided with less than a 6-3 majority.

Of course, this depends on what one's definition of the word "major" is. That streak recently ended when the court ruled 5-4 to severely restrict the ability of government employees to sue for alleged violations of free speech rights in the workplace.

Prior to the "Roberts consensus streak", the only significant 5-4 decision was in a death penalty matter in which Justice Alito abided by his vow during his Senate confirmation hearings to never be the fifth vote affirming imposition of capital punishment. Alito had testified that he believed that no sentence of death should be upheld by less than two votes. He made good on his promise by forcing a remand for further consideration of mitigating factors.

But the socially and politically contentious issues that faced the court last summer and early autumn sorely tested Roberts' task and produced some glaring “failures”, especially those related to the extent of the President’s war waging power, thanks to a required Roberts recusal and a liberal Kennedy moment in one case.

Justice Kennedy caved in the case challenging the power of the President to hold military trials before tribunals established and constituted solely by the executive branch as an incident of war policy, as well as its opposition to federal court jurisdiction over enemy combatants held at Guantanamo Bay, Cuba and elsewhere outside the borders of the Unitized States.

Hamden's lawyers hopes that Roberts’ would retract his recusal due to his participation in the case being heard which opinion he joined while he previously served in the DC Court of Appeals were dashed, but given Kennedy’s betrayal, it turns out that even had Roberts not recused himself, the President would have still lost 5-4.

But Roberts’ power was revealed as still a potent force in the Tom Delay/Texas redistricting cases which had enabled the Republican Party to solidify its control of the House of Representatives from 2000 through 2006.
Roberts has very often managed to enlist liberal justices Stephen Breyer and John Paul Stevens to embrace the essence of traditional conservative judicial philosophy, i.e. to rule only as broadly as is necessary to decide the particular case before them, and avoid setting broad policy for future action as much as possible, so as to leave room for the political branches to decide matters in the political arena based on the facts and political realities existing at the time and to leave the court room to maneuver in the future so as to avoid wild reversals in precedents the public relies upon in considering their actions.
John Roberts so far has shown a preference for that traditional kind of conservatism on the court. The writing of his legacy has only just begun however, and the contentious next few months will be more the norm that the exception if the recent history of the court continues.