Thursday, November 18, 2010

Legal Commentary: NYTimes on the Roberts Court

The New York Times takes an excellent look today at the Roberts court:

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.

And it increasingly does so at enormous length.

I think if you look at the universally most disliked rulings of the last decade (Citizens United and Gonzales v. Raich) you'll notice that both of them had huge down-wind effects that the Court did not seem interested in. Of course, you could argue that if a Supreme Court ruling is controversial, it's almost always because it had huge down-wind effects that the Court either didn't expect or didn't care to delve into.

But in those cases, little thought seems to have been put into the world post-decision. Particularly Gonzales v. Raich, where the Court ruled that marijuana could be illegal federally but legal on a state or local level, was inconsistent to the point of incoherence.

The point of all this is that moderate is not the same as consensus, and both are not the same as good jurisprudence. The ability of the Court to communicate the impact of its decisions, and create guidelines for the world after the ruling is crucial.

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