Chief Justice Roberts and Minimalism
By their nature, commencement addresses tend to be platitude-filled and substance-free. But Chief Justice Roberts, in his first commencement speech (at Georgetown University Law Center), recently said some quite interesting things -- and they bear on his views about the role of the Court and of the Chief Justice.
Chief Justice Roberts made a plea for more consensus within the Court -- for unanimous or near-unanimous decisions, on the ground that they promote the rule of law. But that wasn't the most interesting part. He also argued that unanimous or near-unanimous decisions lead to narrow, minimalist opinions. “The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground." In his view, narrow decisions tend to be best. In an aphoristic summary of the minimalist position in constitutional law, he added, “If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more."
In pointing to the virtues of "the narrowest possible ground," and in saying that consensus within the Court produces narrow rulings, Chief Justice Roberts spoke very differently from some justices, such as Hugo Black, Earl Warren, Antonin Scalia, and Clarence Thomas, who tend to favor wide rulings, on the ground that they promote predictability and clarity in the law. (I have an oped on this subject in today's Los Angeles Times, going into a bit more detail.)
Here's a possible response to the Chief Justice. If predictability is what is sought, a divided Court can actually be good. The reason is the flipside of the Chief Justice's argument: Agreement within the Court is likely to be possible only if the decision is narrow (and hence leaves many questions undecided). With a 6-to-3 majority, rather than unanimity, it is more likely that the Court's opinion can announce a clear, broad rule. So if clarity is what is sought, a fractured court can have some advantages.
Apparently the Chief Justice believes, not implausibly, that a 9-0 ruling, or an 8-1 ruling, can be desirable if it gives a signal that is both clear, in the sense that all or almost all justices stand behind it, and limited in its reach. There is a strong argument for his conclusion, at least on the "frontiers" questions on which the Court lacks the information that would justify a broader ruling. In such cases (consider the novel issues raised by the war on terror), it may well be worth paying uncertainty's price, so as not "to embarrass the future too much" (the words are from Justice Felix Frankfurter, and Chief Justice Roberts quoted them with approval in his Georgetown speech).