In the aftermath of this Supreme Court term, Balkin wrote:
Over at Slate, Emily Bazelon points out that moderate legal academics were completely bamboozled by John Robert's understated and lawyerly demeanor. They figured that because he had the right temperament he wouldn't end up that far to the right. As Emily points out, this was just wishful thinking. We've seen the results this term. Roberts and Alito have taken very conservative positions in a number of cases; they have done so by twisting previous precedents rather than directly overruling them.
There was, in fact a structural explanation for these results that should have been obvious to anyone at the time. It was certainly obvious to me. . . . What is the moral of this story? Pay more attention to the structural background of judicial nominations, and less attention to whether a nominee sounds like a nice guy. Nobody should have been fooled by the Roberts nomination. If we pay attention to how partisan entrenchment works, we will follow the Who's advice-- we won't get fooled again.
Lederman wrote:
the Chief Justice's contribution should not be underestimated. As Emily Bazelon explains in this terrific post, many self-styled liberals and moderates expressed some optimism a year or two ago that John Roberts would not be a predictable conservative vote -- as Jeff Rosen described it, that Roberts viewed himself as a consensus-builder seeking to find common ground among the Justices (as in the Solomon Amendment decision in his first Term), discouraging splintered opinions and endeavoring to avoid the impression that the Court's decisions are ideologically driven (and divided). For example, as Media Matters reminds us, the Washington Post endorsed Roberts's confirmation, even though its editorial board expected him to cast some votes they would not approve, because he had "a modest conception of the judicial function [and] a strong belief in the stability of precedent," and because "[w]hile [Roberts] almost certainly won't surprise America with generally liberal rulings, he appears almost as unlikely to willfully use the law to advance his conservative politics."
But if I'm not mistaken, the Chief Justice voted for the more conservative result (by most observers' lights) in 24 out of the 24 cases decided by a 5-4 vote. One might assume that in this respect, he is simply following in the footsteps of his predecessor. Yet occasionally Chief Justice Rehnquist would vote with the more liberal wing of the Court (particularly where he saw that he could not command a majority for the conservative position, as in Hibbs and Dickerson). There are not yet any such examples from the new Chief Justice. I don't think this should surprise anyone who had followed the Chief's career prior to joining the Court. But here's Cass Sunstein, as quoted by Bazelon: "I'm surprised that Roberts has shown no unpredictability at all; in the big cases, he's been so consistent in his conservatism. I thought that he was too careful a lawyer to be so predictable.
And it would be remiss to not mention the work of Brian Tamanaha:
On an intellectual level, Sunstein’s contrast has plausibility, but on the gut level it seems to mischaracterize the situation.
Notwithstanding these differences, it is both important and true that in every important case this term, the minimalists and the visionaries have agreed about the proper result. Roberts, Alito, Scalia, and Thomas have been operating a bit like the Four Horsemen of the Court's distant past -- not in the sense that their views are poorly reasoned (they aren't) or palpably wrong (they aren't), but in the sense that they vote together with real regularity, and in predictably conservative ways.
The key lesson to be taken from the Supreme Court’s decisions this term is not that conservatives are in control of the court—that was plain already—but that they are willing to aggressively exercise this control to further the conservative agenda.
In their respective confirmation hearings, Justice [“I call balls and strikes”] Roberts and Justice [“A judge’s duty is to follow the law”] Alito promised that their decisions would not be based upon their political views. To many observers that sounded disingenuous or naïve, but it is the correct position to take. It suggested that they would judge with restraint and self-awareness, and it confirmed their recognition that they are a court of law, not the Supreme Political Council. Nonetheless, it did not take long before Justices Roberts and Alito, along with their conservative cohorts, embarked upon their rightward constitutional march, slowly at first, then picking up the pace at the end.
Even Scalia characterized Roberts’ minimalist style as a fraud, writing “This faux judicial restraint is judicial obfuscation.” . . .
Besides that Sunstein’s account is suspect as a descriptive matter, at least with respect to the minimalists, the problem with characterizing their internal division as a difference of legal philosophy is that it lends too much gravitas to the window dressing. To talk of Bentham and Burke in this context seems too grand.
We need intellectual firepower that is honest and clear-eyed on matters like this. The detached and disingenuous "serious" approach of the Sunsteins, Rosens and Lazarus' may play well in Washington legal circles, but like the High Broderism of the Beltway practiced on conventional policy issues, it is what leads to what Grover Norquist crudely calls political "date rape".
