JURIST Guest Columnist Scott Gerber of Ohio Northern University Pettit College of Law says that while Judge John Roberts, Jr., President Bush's nominee for Chief Justice of the United States, may have trouble building consensus on the fractured US Supreme Court, it is unlikely any lower court appellate judge could do better…
First things first. I think Judge John G. Roberts Jr. should be confirmed as the chief justice of the United States. He's smart, experienced, well educated, and possesses a splendid temperament. Most important of all, he's right on most political issues. However, one thing he won't be good at is building consensus on the Supreme Court.
No one else would be good at it either.
Judge Roberts's consensus-building skills were put in play by the very first senator to speak at the confirmation hearing, Judiciary Committee chairman Arlen Specter (R-PA). Senator Specter stressed during his opening statement how important it would be for a new chief justice "to bring consensus to [a] court" crippled by split decisions and splintered opinions.
Later, during his questioning of the nominee, the senator characterized the Court's recent jurisprudence as a "patchwork of confusion" and asked Judge Roberts whether, if confirmed as chief justice, he would work to build consensus on the Court. Judge Roberts responded that he would make it a "priority" to do so.
I'm confident that Judge Roberts was being sincere in his answer to Senator Specter's question. Unfortunately, as Professor Keeok Park and I demonstrated in a lengthy empirical study in the American Political Science Review it is quixotic to search for a consensus-builder for the Supreme Court, at least when the nominee is drawn from one of the nation's lower appellate courts, as Judge Roberts is, and as almost all nominees have been during the modern era.
Professor Park and I discovered in our study that virtually all justices become more conflictual on the Supreme Court than they were on a lower court: they concur more and dissent more–and write more concurring and dissenting opinions–as justices than they did as judges.
In addition, we found that many justices who exhibited consensus-building inclinations on a lower court are highly conflictual on the Supreme Court. For example, the late Justice Harry Blackmun's discordant ratios as an appellate judge were among the lowest in the group, but his discordant ratios on the Supreme Court were among the highest. These findings held even after we adjusted for the differences in court size and ideology between the relevant lower appellate courts and the Supreme Court.
This is because the modern Supreme Court is a unique court, one whose institutional environment leads to dissension. Specifically, the Supreme Court is distinctive among collegial U.S. courts in the discretionary character of its docket, the controversial nature of the cases it decides, and the norm of individualism it invites.
Consequently, consensus is not easily achieved.
Indeed, although the late Justice William J. Brennan Jr. had a reputation for being a consensus-builder on the Supreme Court, what he was actually so gifted at was building coalitions for liberal political outcomes. Our study found Justice Brennan to be one of the most conflictual members of the conservative Rehnquist Court: he cast concurring and/or dissenting votes 68 percent of the time and wrote concurring and/or dissenting opinions 20 percent of the time.
In short, the Supreme Court is, at heart, a political institution, and what matters above all else is the political preferences of the individual justices. What this means for the confirmation process involving Judge Roberts is that if a particular senator likes Judge Roberts's political views, he or she should vote to confirm him as chief justice. If the senator does not share the nominee's political views, the senator should vote against the judge. This might sound overtly partisan, but the data suggests there's no use burying our heads in the sand any longer.
Scott D. Gerber is a law professor at Ohio Northern University. His legal thriller, The Law Clerk, will be published in October by Seven Locks Press.
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