Narrow Opinions

Since the much heralded case of Marbury v. Madison, Justices of the Supreme Court have often done whatever was necessary to decide a case in order to bring about a desired result. In Marbury, Chief Justice Marshall could have disposed of the case quickly, efficiently, and without much discussion at all (I'm not going to get into a discussion of how unless somebody asks me for it in the comments section, but that's not bloody likely). Instead, Marshall answered questions that were unnecessary to the disposition of the case. In so doing, he firmly enshrined the concept of judicial review in the legal system.

Judges' motivations are not always so lofty, and a great many decisions have reached beyond what was technically necessary in order to bring out some sort of social change. Sometimes this change has been desirable; sometimes it has been lamentable. Always, however, it has been a breach of the judicial duty. Judges are charged with ruling on questions of law, deciding how laws are to be applied in certain situations. When judges are acting properly, they answer only those questions that are necessary to dispose of the case, thereby avoiding acting in a legislative, or even worse, godlike, manner. This is one of the reasons that courts look to jurisdiction first; they are decision-averse, and if they can dispose of a case by finding a lack of jurisdiction, most courts will gladly, and appropriately, do so.

This article by E.J. Dionne suggests that Chief Justice John Roberts gave a speech at Georgetown paying lip service to this concept. The article holds out hope that the Chief will seek consensus by finding narrow grounds on which to rule on cases. Frankly, I doubt it. This speech saw Roberts saying exactly what judges are expected to say. Don't get me wrong; I think Roberts is a good judge and from everything I've heard he is an amazing Chief. I just don't believe that he is going to be some sort of "consensus builder" on the Court, at least not anytime soon.

The main reason is what that would force Roberts to do. As it is now, he can fairly reliably win Conservative victories by 5-4 votes. That's not desirable, but if he were to construct "narrower" victories, it is likely that he would only achieve 5-4 or 6-3 votes...with HIM joining the four liberals, along with maybe Anthony Kennedy. That strikes me as highly undesirable from his standpoints.

In the short term, my analysis appears to be sound; as the Supreme Court waited until June to start issuing it's most difficult, controversial opinions. Almost exclusively, they have been 5-4 opinions. I don't see a lot of consensus building going on there. It's too early to tell how Roberts will change the institution, but for those hoping for a moderate swing voting Chief, it appears that was a bit of a pipe dream.