The Roberts Court, 2017 Edition by Linda Greenhouse
'A Supreme Court quiz: Who offered this paean to judicial restraint: “If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case”?
Congratulations if you guessed Chief Justice John G. Roberts Jr. If you find the authorship surprising, perhaps you have been paying attention to what the man actually does, not just what he says. There’s considerable daylight between the two, and it may be growing.
The chief justice made that statement in May 2006 in a speech at Georgetown University’s law school commencement. Consensus was preferable to division on the court, he told the law graduates, adding that a reliable route to achieving consensus in controversial cases was deciding them on the “narrowest possible grounds.”
That was nearly 11 years ago, only eight months into his tenure. It was before Citizens United erased limits on corporate spending in politics, before Shelby County v. Holder eviscerated the Voting Rights Act, before Chief Justice Roberts swung for the fences in the Parents Involved case to bar formerly segregated school districts from trying to preserve integration through the use of racially conscious student assignment plans. (Only Justice Anthony M. Kennedy’s separate concurring opinion in that 5-to-4 decision retained some leeway for school districts looking for strategies to prevent resegregation.)
And now we have Trinity Lutheran Church v. Comer, a case argued last week that presents the question whether a state that provides grants to schools for upgrading their playground surfaces can constitutionally disqualify a church-run nursery school from eligibility because of its religious character. That question is either trivial or profound, depending on the level at which one enters the debate; at the highest and most problematic level, the question is whether religion is entitled to a seat at the public-benefit table as a matter of federal constitutional law, despite the many state constitutions that prohibit taxpayer money from going directly to churches.
“It’s a fraught issue. It’s a hard issue,” Justice Elena Kagan observed during the argument, and that’s certainly true. What’s also true is that because of an unexpected development on the eve of the argument, the question as presented in this particular case is moot. In another words, the controversy no longer exists, because the state now agrees with Trinity Lutheran’s position. And that’s what makes the court’s next move — to dismiss? to plow ahead anyway? to rule broadly? narrowly? — so fascinating. The choice the justices make in the coming weeks will tell us something important about the newly reconstituted Roberts court, specifically whether its commitment lies with consensus or with the regained power of five votes.'>>>
https://www.nytimes.com/2017/04/27/opinion/the-roberts-court-2017-edition.html?
