Demonizing the "Roberts Court," dishonestly, Part Two

Powerline ^ | 5 July, '10 | Paul Mirengoff

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Democrats on the Senate Judiciary Committee tried to use the hearings over Elena Kagan's nomination to attack the "Roberts Court" as activist. However, Jonathan Adler, at the Volokh Conspiracy, argues that the Roberts Court remains, by and large, "minimalist," rather than activist. Adler writes:

As a general rule, this remains a court that tends to rule narrowly, and this is largely because the Chief Justice, Justice Alito, and sometimes Justice Kennedy have a preference for narrower rulings and smaller steps. But narrow rulings are not always possible. Sometimes the legal questions cannot be neatly divided. In such cases I think the Chief Justice has shown a willingness to stretch the law in order to decide a case narrowly, as occurred in the NAMUDNO voting rights case, so long as such a holding will unify the Court. Where a strained, narrow ruling will not unify the Court, however, he will opt for what he sees as the more correct holding instead of adopting a narrower holding for a narrower holding's sake. Citizens United is a case in point, for while there were ways in which the case could have been decided on narrower grounds, the dissent made quite clear the decision would have remained 5-4.

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Useful links in the post above at Powerline.

[SunkenCiv]

Thanks 4buttons.

As a general rule, this remains a court that tends to rule narrowly, and this is largely because the Chief Justice, Justice Alito, and sometimes Justice Kennedy have a preference for narrower rulings and smaller steps. But narrow rulings are not always possible. Sometimes the legal questions cannot be neatly divided. In such cases I think the Chief Justice has shown a willingness to stretch the law in order to decide a case narrowly, as occurred in the NAMUDNO voting rights case, so long as such a holding will unify the Court.