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Thursday, April 12, 2007

Chief Justice Roberts: Consensus is Great (If You Agree with Me)

There has been a torrent of commentary following the Supreme Court’s decision last week in Massachusetts v. EPA, including our own Full Court Press entry. The decision held that the EPA has the power to regulate greenhouse gases. Linda Greenhouse of The New York Times discussed the case in an article earlier this week, concentrating on how Chief Justice Roberts’ dissent in the case exposes the difficulties the Chief Justice faces in succeeding at the consensus-building he has championed on a philosophically divided Court:

In interviews and public appearances, Chief Justice Roberts has set a new standard for visibility, and the portrait of the chief justice as an avatar of a new era of consensus on a divided court has gained considerable currency in articles and even books.

This case was a rude reminder that his careful self-presentation comes with a price. He is no more likely than any other justice to yield on what he regards as a matter of principle. But the raised expectation of consensus magnifies a defeat like this one: his consensus project lost as well.

Moreover, the Chief Justice not only failed to garner consensus in this case, but, as Greenhouse pointed out, the tone of his dissent was decidedly less-than-collegial: "It was his vehemence rather than his dissenting vote that was the surprise. This was no dry document written by a law clerk. The chief justice was spending capital and speaking in his own voice."

This case was also interesting because it played t wo central conservative ideals against each other. The case was brought by Massachusetts and a number of other states, bringing to bear the issue of states’ rights. However, on the other side of the equation was the issue of standing (i.e., whether the states in this case had the right to sue). Ultimately, "[f]or Chief Justice Roberts, limiting standing was more important than deference to the states, a choice rich with implications as the Roberts court continues to reveal itself.”

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