At Liberty Law Blog, John McGinnis: In Praise of John Roberts and his Reformulation of Political Questions. On Roberts generally:
One’s evaluation of John Roberts’ performance may depend on how one prioritizes cases. While I disagreed with King v. Burwell, I do not think a contrary outcome would have had real-world effects, as Republicans in Congress would have caved on subsides. In contrast, on the most important constitutional issue of our time—resisting the attempt to tamp down on speech during elections—he has been the leader on the Court. He has applied neutral principles found elsewhere in First Amendment law to permit ordinary citizens to spend as much as they like to get out their views at election time, just like the media. He has given corporations the right to speak at election time, just as they do in other First Amendment contexts. He has rebuffed Justice Stephen Breyer’s dreadful idea that the Court should defer to Congress on such issues, which would turn the First Amendment from a charter of liberty into a delegation to self-interested regulators. The fate of our republic may rest on whether our representatives should be given the power to determine how opinion is shaped and he has been splendidly on the side of constitutional liberty in the most important of the cases about campaigns and speech.
And on political questions:
But my main purpose in this post is to praise his treatment of the political question doctrine in Zivotofsky v. Kerry [ed.: actually he means Zivotofsky v. Clinton]. He took a doctrine that was a mess and turned it into law rooted in the original meaning of the Constitution’s text. Before Zivotofsky, the modern doctrine was a balancing text of various factors, many of which had no clear relation to the Constitution. It was thus the kind of doctrine of which the Supreme Court case law is sadly full—a reservoir of discretion for the justices and a barrier to the understanding of the public. After Roberts’s opinion, the political question doctrine is straightforward and straightforwardly limited. It is available only when the decision is “textually committed to another branch” or “there are no judicially discoverable and manageable standard to apply.”
I agree with both points. As to Zivotofsky, here are my thoughts after the case was decided. (My concern on this point, though, is that I'm not sure the lower courts are fully appreciating the force of Zivotofsky. For example, in the Wu case I wrote about recently, the court of appeals decided the matter on political question grounds [wrongly, in my view] without paying much heed to Zivotofsky. The Court may need to reiterate the point if Zivotofsky is going to have the transformative force it should.)
The broader point is sound as well. Criticisms such as those Senator Cruz voiced at last weeks' candidate debate (see here from Carrie Severino) seem overblown. Put aside the Obamacase cases, and I don't see which of the Chief Justice's votes conservative-leaning originalists have to complain about. Indeed, when I disagree with the Chief on originalist grounds, it's usually because he takes a more conservative position that I think originalism can support (especially in criminal procedure and some campaign finance issues).
Professor McGinnis mentions Free Enterprise Fund and Noel Canning as additional examples of Roberts' respect for the rule of law and original meaning; I agree, and one could add (especially a conservative-leaning originalist would add) his dissents last term in Obergefell and Arizona State Legislature and his vote with the majority in Glossip, as well as his earlier votes with the majority in Heller and McDonald and his majority opinion in Medellin. The only constitutional case last term where he seemed to stray in a liberal/make-it-up-as-we-go-along way was Williams-Yulee v. Florida Bar, a pretty inconsequential case and also one that I suspect is, like the Obamacare cases, something of its own category.
In sum, the Roberts appointment seems like one originalists should celebrate, notwithstanding a few disagreements.
UPDATE: I thought of two additional cases that should make originalists and conservatives cringe: Comstock v. United States and Arizona v. United States. Both put Roberts (and Kennedy) with the liberal-leaning Justices against Scalia and Thomas. So on reflection I would add "mostly" before "celebrate" in the last sentence.
Posted at 6:22 AM