Rehnquistian pragmatic formalism: is Chief Justice Roberts really a minimalist?

Ever since his speech at Georgetown, the blawgosphere has been abuzz with discussion about Chief Justice John Roberts' apprently-espoused minimalism and its consequences. I have to confess to some doubt about both.

It's interesting that most of those who have commented on Roberts' address - so far as I have seen, at any rate - have quoted very narrowly from the speech, so it seems to me that it's worth recounting fully what he actually said. Let's go to the tape. When he turned to the portion of his commencement address that has become known as the significant part - the section about consensus on the court, running 51:55-53:55 - what our Fearless Leader actually said was this:

[T]here are clear benefits to a greater degree of consensus on the court. Unaminity - or near unaminity - promote clarity and guidance to the lawyers and to the lower courts trying to figure out what the Supreme Court meant. Perhaps most importantly, there are jurisprudential benefits; the broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible grounds. It's when the decision moves beyond what is necessary to decide the case, the justices tend to bail out. If it's not necessary to decide more to dispose of a case, in my view, it is necessary not to decide more. In Felix Frankfurter's words, a narrow decision helps ensure that we "not embarras the future too much." The rule of law is strengthened when there's greater coherence and agreement about what the law is.

After making clear that "the key to achieving this broader consensus" is collective responsibility of the entire point to work together harmoniously, Roberts significantly adds, "there will, of course, be divisions on the court, and those cannot and should not be artificially suppressed ... but the rule of law and the Court as an institution both benefit from broader agreement."

Most commentators have essentially concluded that the speach was a pæan to judicial minimalism and judicial modesty (assuming of course, contra Scalia - see The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 - those two terms are considered to be close relations). Edward Lazarus, for example, claimed that Roberts "extolled the virtues of unanimous Supreme Court opinions", while Cass Sunstein, called it "an aphoristic summary of the minimalist position in constitutional law":

Chief Justice Roberts made a plea for more consensus within the Court -- for unanimous or near-unanimous decisions, on the ground that they promote the rule of law. But that wasn't the most interesting part. He also argued that unanimous or near-unanimous decisions lead to narrow, minimalist opinions.

A Sunstein companion piece in the LA Times similarly averred that:

What makes Roberts' argument noteworthy is that it takes a side in one of the deepest and most long-standing divisions in American jurisprudence — a division that cuts across the standard ideological lines.

One strand of that jurisprudence, associated with justices Antonin Scalia and Hugo Black, prizes broad, ambitious rulings on the ground that they give the clearest signals to lower courts, potential litigants and the nation as a whole . . . [while] [t]he competing strand, associated with Frankfurter and Justice Sandra Day O'Connor, prizes narrow rulings...

In a period in which the court must answer many novel questions, there is a lot to be said for minimalism — not least because it tries to avoid taking a stand on the most controversial questions and thus shows respect for people with reasonable competing views . . . Indeed, narrow rulings help to promote a key goal of societies that are both diverse and free: to make agreement possible where agreement is necessary, while also making agreement unnecessary where agreement is not possible.

(Well, Sunstein would say that, wouldn't he? He has just written a book - of which I have an extremely low opinion - making the argument that Judges, or at least, conservative judges, should be minimalists).

The assumption that Roberts was declaring himself a minimalist at Georgetown pricks the curiosity of Prawfsblawg guest Jason Solomon, who wrote two posts essentially making the argument that our Fearless Leader is, in fact, only a minimalist when it suits him: "it appears that Roberts' conservative ideology may have trumped his stated preference for narrow, unanimous rulings." For evidence, Solomon points to Justice Kennedy's quite broad 5-4 opinion in Garcetti v. Cellabos last week, and asks, "What gives? I thought 5-4 broad decisions were out under Roberts," before offering up four hypotheses. I disagree with all of Solomon's hypotheses, because in all cases, he's starting from the very premise I'm unsure about: that the prevailing wisdom about what our Fearless Leader said at Georgetown - that he is a minimalist - is what Roberts actually said. If the prevailing wisdom is right, and Roberts really was saying at Georgetown that he was a Sunsteinian minimalist, then sure, it's hard to explain a result like Garcetti. But is it really clear that Roberts was touting minimalism as a virtue in and of itself?

It seems to me that there is an equally-plausible alternative interpretation of Roberts' speech, one that is suggested by - as I did above - quoting the entire segment. The major theme seems to be that what Roberts is really interested in is the integrity of the Court and of the rule of law. It isn't that he is looking for minimalism or unaminity for its own sake, it's more that those things lead to "greater coherence and agreement about what the law is"; they "promote clarity and guidance to the lawyers and to the lower courts." Saying that "the rule of law and the Court as an institution both benefit from broader agreement" implies that it is the beneficiaries - not the benefactor - that are the focus. I offer the suggestion that Roberts may be advancing something altogether more pragmatic - more Rehnquistian - which is that minimalism is a tool which he regards as having the virtue of keeping as many justices on board as possible, which leads to stronger majorities, and stronger majorities garner greater confidence in what the law is, which is precisely what Roberts seemed to say.

The reason that formalists -- and I place myself on the Scalia/Black side of Sunstein's division, quoted above -- prize bright-line rules is for precisely the reasons that Roberts spelled out: they provide "greater coherence and agreement about what the law is" and they "promote clarity and guidance to the lawyers and to the lower courts." Hence, in the normal course of business, formalists want broad, bright-line rulings. But consider: one of the hallmarks of the Rehnquist court was 5-4 decisions, and worse yet, complete jurisprudential train wrecks like McConnell. In several areas -- look at sovereign immunity and federalism jurisprudence, look at Booker et al -- we spent the 1990s with a majority of justices saying that the law was one thing, and the dissenters saying something completely different and then sticking to their views in subsequent cases (n1). This has not served the rule of law, and has generated opinions that are very difficult for lower courts - on which both Roberts and Alito sat until recently - to undertake to apply. It doesn't serve, in other words, the very goal that formalists are seeking.

The simple fact is that the more Justices sign on to an opinion, the more likely that opinion is to inspire confidence that it accurately reflects what the law is, and that it isn't simply going to be overturned should a key member of the majority retire and be replaced with someone who will vote with the minority. Therefore, I think that Roberts is not, in fact, saying that opinions should always be as narrow as possible, I think he's saying he would prefer a narrow ruling with a clear majority over a clear ruling with a narrow majority.

Presuming I'm right, then suddenly a case like Garcetti may make a lot more sense, without the need for Solomon's hypotheses. Once we liberate ourselves from the idea that Roberts is looking for majorities for their own sake, it becomes apparent that he is actually looking to have an opinion which commands the strongest majority possible. And when that becomes apparent, you have to ask: what does Roberts do if that isn't possible?

Garcetti was a broad holding, but was it really the breadth of the result - rather than the result - that drove Stevens, Souter, Ginsburg and Breyer into dissent? Perhaps it is simply the case that in Garcetti (as it will presumably be in other cases) there was simply no way to reconcile the competing views of the case. If there was simply no way that the four would join a majority opinion that actually decided the case (or, worse yet, if narrowing the ruling would risk splintering the majority), it makes some degree of sense for the ruling to find its natural level of generality.

Now, if it was possible that a narrower opinion might have attracted Breyer, for example, that is one thing; but if, on the other hand, it was the situation that the four dissenters just flat-out wouldn't go along with the result, and if (as I think I've shown) Roberts goal is not narrow rulings per se, but rather, rulings that are as clear as possible while still commanding the greatest majority possible, then it becomes largely irrelevant (at least from the standpoint of tactics) whether the opinion is narrow or broad, because in either event, the case would still have come out 5-4.

In that case - the inescapability of a 5-4 ruling - when Roberts' preferred means (and it's means not goal, as I've discussed above) has disappeared over the horizon, presumably Roberts' secondary goal comes into play. Having established - as would presumably have been clear at Conference - that this case was going to be 5-4, what are Roberts' secondary means? Well, his goal is to serve stability, confidence and clarity in the law. So in the first instance, it is obvious that writing a narrow ruling anyway not only doesn't serve that goal, but in fact, hinders it, since it may splinter the majority by provoking a concurrence from Scalia and/or Thomas (that role - the spoiling concurrence - used to be the O'Connor/Kennedy speciality). I would suggest that someone who is as pragmatic enough to think that a narrower ruling supported by more justices is better than a broad ruling supported by a bare majority would also be pragmatic enough to say "well, if we can't have a stronger majority, we might as well go to the second-tier virtue of writing a clear and unambiguous opinion."

In short, I think that Roberts' speech has been misunderstood. It's not that he's averse to a clear ruling, it's that he's lived and worked as a lawyer and a judge on the recieving end of the messier aspect of the Rehnquist Court; he's had to work out what a 4-1-4 ruling means and apply it, and so I would suggest that he IS, in fact, on the Scalia/Black/Dodd team - it's just that he has added a new and pragmatically Rehnquistian analysis to formalist thinking. Which seems aptly appropriate for a former Rehnquist clerk: Rehnquistian pragmatic formalism.

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Footnote
n1. This is why it's so hard to suppress the guffaws when liberal Senators tout stare decisis as an inexorable commend at confirmation hearings. Compare Justice Potter Stewart, who eloquently dissented from Griswold v. Connecticut, but reluctantly joined Roe v. Wade eight years later, saying in concurrence that "it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the 'liberty' that is protected by the Due Process Clause of the Fourteenth Amendment"; Stewart hadn't changed his mind, he simply assumed the virtue of stare decisis: "I didn't agree with that result then, I don't agree with it now, but that's what we decided."

Update, 11/14/06: Dahlia Lithwick links in to say that "[t]here is a debate raging among legal academics as to whether the new chief justice really is a judicial minimalist or merely plays one on TV. Similarly, there is some question as to whether he is truly an unabashed proponent of unanimity or whether he'd simply prefer that the court be unanimous, so long as it unanimously agrees with him." For reasons that I hope are clear from the foregoing post, I think that's a false tension, but the citation's appreciated. :)

Update 2: Lest my point be misunderstood, I summarize the argument I'm making about Roberts here.

Post facto:
Chief Justice Roberts and Minimalism: the Story so Far (4/2/08)