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How President Obama's Agenda Parallels That of Chief Justice Roberts: Both Seek to Change the Nature and Tone of Decisionmaking, But Will Each Succeed?


Thursday, Jan. 29, 2009

Chief Justice John Roberts and President Barack Obama have more in common than sharing an awkward recitation of the Oath of Office on Inauguration Day.  Both, at the very outset of their tenures, set for themselves the ambitious agenda of changing the nature and tone of decision-making in their respective spheres.

As was much discussed at the time, when Chief Justice Roberts was nominated, he declared his ambition to change the Supreme Court’s entrenched practice of issuing highly fractionated decisions marked by bitter sniping among the Justices.  Roberts hoped that, through personal charisma and moral suasion, he could build greater consensus among his colleagues and soften the acrimonious tone to one of principled disagreement.

President Obama has voiced similar aspirations when he speaks of ending politics as usual in Washington.  Hoping to restore at least some modicum of bipartisanship, he has taken sharp aim at the terrible acrimony and paralyzing divisiveness that have undermined the integrity and effectiveness of the elected branches of government.

As I have noted in previous columns such as this one, the Chief Justice, after some initial success, has had a difficult time achieving his stated goal.  And President Obama is likely to face similar difficulties and achieve similar results.  But there is virtue in the efforts of both men, even if their goals are destined to remain elusive.

The Case for Blagojevich: Allegations of Grossly Abusing the Public Trust

In my office, the results have been split, for the reasons described below. Whatever the bottom-line vote, however, all the conversations I've had on the topic come around to the same incredibly depressing conclusion – we may be living through the most corrupt period in American history, a time when society's elite threw off the harness of law and decency in headlong pursuit of riches and self-aggrandizement.

Although he is not my choice for the most morally culpable of the three, a lot of my friends put Blagojevich in the very worst circle of the Inferno. The most notorious charge against the Illinois governor is that he viewed the chance to appoint Barack Obama's successor as a vehicle for enhancing his personal fortune. Caught on a wiretap, Blago is heard to gloat: "I've got this thing [the power of appointment] and it's (expletive) golden. And I'm just not giving it up for (expletive) nothing. I'm not gonna do it."

Then there is an allegation that is perhaps less well-known but no less appalling: Blago is also accused of threatening to withhold millions in assistance to a children's hospital unless sufficient contributions were made to him. Similarly, he allegedly expected contributions in exchange for toll road contracts. And he is claimed to have threatened not to help the Chicago Cubs' stadium unless the Chicago Tribune fired editorial board employees who'd been critical of him.

Maybe it's the fact that I know a lot of former government lawyers, including a lot of former prosecutors, but the fact that Blago was abusing the public trust for private gain registered extra high on the immorality scale with many whose opinions I sampled. And who can truly argue with their view? When our high public officials behave disgracefully, it reinforces a destructive cynicism about our whole political system. And it's really no rejoinder to say, as some have, that, hey, we're talking about Illinois here – so what did we expect?

The Chief Justice’s Agenda:  Marked by Only Limited Success

Chief Justice Roberts enjoyed enormous initial success.  In his first term, the Justices handed down an unusually high number of unanimous opinions and generally avoided accusing each other of being hypocritical idiots.  But these changes proved incredibly short-lived.  Roberts’s second-term was one of the most divisive in Court history, marked by a stunning proportion of 5-4 decisions and furious invective.  The most recent term fell somewhere in the middle by these measures.

The reasons are simple to identify.  In Roberts’s first term, he enjoyed both an initial honeymoon period and, at least as important, a docket containing relatively few truly controversial cases.  Welcoming their new Chief to the Court, the other Justices naturally tried to accommodate Roberts whenever possible, and their efforts included forging some compromises on the few tough cases that came up, as well as embracing a general willingness to blunt their rhetoric.  But a necessary precondition for this initial quiescence was the fortuitous happenstance that, in that term, the Court did not face (or managed to sidestep) cases involving abortion, race, school prayer, employment discrimination, the death penalty, and states’ rights – that is, the very kinds of cases that had fueled the ongoing civil war in our legal culture.

Roberts did not get nearly so lucky in his second and third terms.  Especially in his second term as Chief, the Court’s docket was crammed with just the kind of cases that had riven the Court in the past, as well as cases raising the new and divisive issue of the President’s powers in the war on terror.  As was fairly predictable, Roberts proved helpless to overcome the ideological divisions that set the Justices against each other, in a 5-4 divide, over and over again, or to stop the warring liberal and conservative factions from attacking each other brutally, as each side claimed not merely legal but also moral superiority over the other.

Will President Obama’s Agenda Share the Fate of Roberts’s – with Moderation and Compromise Eventually Giving Way, Once Again, to Sharp Partisanship?

One has to wonder whether President Obama, no matter how well-intentioned and diligent in pursuing his goal of a new politics in Washington, will suffer similar disappointment.

Like Roberts, he has certainly gotten off to an excellent start.  House Republicans were kvelling over Obama in the wake of the President’s trip to Capitol Hill to meet with GOP skeptics of his stimulus package.  Apparently, the Republicans were pleasantly surprised, even moved, by the President’s willingness to listen to their concerns about the proposed legislation and to explain the thinking behind his stimulus proposal.  They did not even seem to mind when Obama emerged from the meeting and declared that, notwithstanding a useful discussion, he was firmly committed to the basic components of his current plan, and that he had no intention of compromising on some of the major provisions opposed by the GOP.

But it is difficult to believe that Obama’s sincere push for a more reasoned and bipartisan politics will not at some point crash headlong into the very real and unbridgeable ideological differences that separate our two political parties.  While the country as a whole may contain a significant segment of political centrists, Congress has a very thin centrist component.

Indeed, the Capitol features two partisan wings with vastly different and deeply held convictions about the role of the federal government in national life and the substantive policies that the government should be pursuing.  There is always some room for compromise and trade-off in politics.  But the policy differences in Washington are largely irreconcilable and, at some point, the President and the Democrats, regardless of how much talking they do across the aisle, will have no choice but to pursue policies that many of the Republicans will oppose, and even despise.

This is not so different from the dynamic on the Roberts Court.  On some issues, compromise at the Court is possible, with narrow paths traced amid ideological thickets.  With respect to many issues, however, the choice is stark and affords no common ground over how to read the Constitution or do justice under law.  In these cases, and they are legion, five votes beat four, and all that is left for the losers is intellectual fury.

But the admission that efforts at consensus, both at the Court and between the political branches, are doomed to significant failure is by no means an indictment of either the Chief Justice’s or the President’s efforts.  There is much to be said for trying to establish a decency of process, a way of talking to each other across ideological chasms that is less shrill, less personal, less self-defeating.  Debate is the very lifeblood of democracy.  What has hurt the Court, what has hurt the rest of Washington, and what has disserved the country, is not so much the fact of strong disagreement, but the willingness to go to any means – impeachment, Bush v. Gore, and an endless string of tit-for-tat “Borking” – to achieve some ideological advantage.

If Roberts and Obama can change that dynamic, even modestly, they will have accomplished a lot, and will have made themselves strange bedfellows, well met.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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