Thu December 2, 2010

Roberts' Court Long On Words, Short On Clarity

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is "the most conservative one in recent memory," reporter Adam Liptak wrote recently in The New York Times.

Liptak, the Supreme Court correspondent for the Times, joins Fresh Air's Terry Gross Thursday for a discussion about the decisions the panel has made under Roberts' leadership in the past five years. He also takes a look at some cases that will be decided during the current term.

In November, Liptak wrote that the Roberts court is not only the most conservative but also one of the most unwieldy in terms of its writing. The high court set a record last term for the median length of its decisions.

"They're writing very long," he says. "And they're also written in this kind of institutional style where it's hard to tell what the rule being proposed for lower court judges to follow is."

Liptak points to a decision the court handed down in March 2010 on mutual-fund advisers' fees. The decision was unanimous but vague enough that both sides declared victory.

"I knew it was a confusing decision because my phone started ringing and lawyers for both sides were completely convinced that they had won the case," he says. "Each side was persuaded that they had won the case because the court's decision was ambiguous enough that you couldn't even tell which side had won."

He says there are several reasons for the lack of clarity in the court's writing. Some of the justices delegate their decision-writing to their law clerks. And the frequent draft revisions -- and the attempts to achieve group consensus on decisions -- make for an "institutional, plodding quality" of writing in the court's decisions, Liptak says.

"Getting nine people on board and getting nine sets of comments might move you in the direction of fuzziness," he says. "And Justice [Antonin] Scalia, who spoke about my article at the Federalist Society a few weeks ago, said, 'That's right. The more you go for unanimity, the more you go for fuzziness. A 5-4 decision is likely to give you a much cleaner set of guidelines if you're a lower court judge."

Adam Liptak is the Supreme Court correspondent for The New York Times. His 2009 series on the differences between the United States and legal systems in other countries was a finalist for the Pulitzer Prize. His work has also appeared in The American Lawyer, Vanity Fair, The New Yorker and Rolling Stone.

Interview Highlights

On former Justice John Paul Stevens' view of capital punishment, presented in an essay in the New York Review of Books

"Justice Stevens was one of the justices in 1976 who voted to reinstate the death penalty after a four-year moratorium. And at the time, he now says, he thought it might be possible to come up with procedures that might isolate those crimes that warranted the ultimate punishment. And in a new essay, he talks about how disappointed he was with the court in moving in the opposite direction -- in his mind, making the system more politicized, picking juries more prone to impose the death penalty, allowing elected officials and prosecutors to take politics into account [and] rejecting statistical evidence of racial disparities in the death penalty -- in all of those ways, moving away from what he thought was the possibility of focused capital punishment toward a kind of arbitrary system infected by emotionalism, victim impact statements and racial and politicized decision-making. So at the very end of his career, before he stepped down, he announced that he no longer thought the death penalty was constitutional, though unlike some of his predecessors, he continued to apply the court's precedents and did impose the death penalty through the end."

On why Stevens' essay was unusual

"He offered a blow-by-blow deconstruction of the cases where he thinks his colleagues went wrong and really, quite focused and surprising accusations of what he called 'regrettable judicial activism' against not only the more conservative justices, but singling out Justices Kennedy, who's currently the court's swing vote, and Justice Souter, who was frequently an ally of Justice Stevens' on the more liberal side of the Court."

On the conservative nature of Roberts' Court

"When political scientists run numbers, what they find is that the Roberts court has taken a small step to the right of the two quite conservative courts that preceded it. The Burger court and the Rehnquist court, which sat for about 35 years, fairly consistently were ruling in a conservative direction about 55 percent of the time. That was a very, very sharp turn to the right from the Warren court, the famously liberal court that preceded it, which was at 34 percent [conservative]. And the Roberts court, which has now finished five years, now moves an additional increment to the right. It's now at 58 percent -- I stress, not a huge move, but a discernable move in a period where there was nothing like this. And the term that ended last year, the court is at 65 percent conservative. So you do see by these measurements, the court is noticeably more conservative than even the conservative courts that preceded it."

On the case Snyder v. Phelps, about freedom of speech at funeral protests

"One case [that continues the court's quite intense engagement with the First Amendment] involves funeral protesters at military funerals and particularly a small church called the Westboro Baptist Church which has the theological point of view that God is punishing the United States for its tolerance of homosexuality by killing its soldiers -- a sentiment that a lot of people think very ugly if not lunatic. And they show up at military funerals and, without question, make a very dark day even darker for the people trying to bury their sons and daughters. The question in the case, though, is whether the father of a fallen Marine can sue the pastor and the church itself for infliction of emotional distress. That's a difficult First Amendment question. It's one thing, I can imagine, the court might be fairly sympathetic to a local law that says nobody can come protest within a mile of a funeral -- a content-neutral restriction on speech. I think the court is finding it harder to decide how to deal with this case, where a jury gets to decide what speech is so ugly and hateful that it would allow a jury to impose millions of dollars in punishment, as it did in this case. How the court comes out on that case seems to be a very, very interesting question." Copyright 2011 National Public Radio. To see more, visit http://www.npr.org/.