Stone Discusses Roberts's View of the Supreme Court's Role

A narrow view of the law
Geoffrey R. Stone
Chicago Tribune
February 7, 2007

In a recent speech in Chicago, Chief Justice John Roberts stated that the Supreme Court functions best "when it can deliver one clear and focused opinion of the court." He lauded the importance of judicial "consensus," arguing that cases should be decided "on narrow grounds" and that differences of opinion among the justices generally should be expressed secretly in the court's private conferences, rather than in published dissenting or concurring opinions.

As one who does not share the very conservative inclinations of the majority of the current Supreme Court, I should heartily endorse Robert's call for narrow decisions that reflect a consensus among the justices. The more the court follows the Roberts vision, the less damage it is likely to do to the fabric of constitutional law. My self-interest as a citizen should cause me to cheer on Roberts.

As a student of constitutional law, however, I find his understanding of the role of the Supreme Court disturbing. It reflects the same simple conception of our constitutional system as his assertion during his confirmation hearings that Supreme Court justices are like baseball umpires, whose job it is simply to call the balls and strikes of constitutional law.

Roberts maintains that the Supreme Court should decide cases narrowly. That is, the court should decide each case on a ground that decides no more than is necessary to resolve the dispute before it. This is a fine aspiration for lower courts, whose primary job is to resolve the specific controversy between the parties. But for the Supreme Court, which hears fewer than 100 cases each year, this would be a serious abdication of responsibility. The court's role is not merely to decide whether the plaintiff or the defendant wins, but to enunciate principles of law--especially principles of constitutional law--that will provide guidance to police officers, legislators, prosecutors, lower court judges and, of course, citizens about the nature and extent of their rights and duties.

Whenever the Supreme Court decides a case narrowly, resolving only the particular dispute before it, the court leaves the rest of society and the legal system in the dark. When the Supreme Court leaves important issues unresolved, everyone else must guess about what they can and cannot do under the law. In such a legal regime, lower courts are free to disagree with one other, and the nature and scope of constitutional rights will vary randomly from state to state and district to district throughout the nation. Uncertainty is not a healthy state of affairs when it comes to the freedom of speech, the freedom of religion or the right of the people to be secure against unreasonable searches and seizures. It may be convenient for the court to decide cases narrowly, but such an approach leaves ambiguity and chaos for everyone else.

Roberts also wants more unanimous opinions. But the legitimacy of the judicial branch rests largely on the responsibility of judges to explain and justify their decisions in opinions that can be read, analyzed and publicly criticized. Consensus opinions designed to hide the disagreements among the justices fail to meet that responsibility. The price of achieving consensus is to eliminate from the court's opinion anything with which one or more of the justices disagrees. The result is opinions that say little of substance, mask the critical steps in the court's reasoning, and persuade no one of the wisdom of the outcome or the seriousness of the reasoning. The quintessential consensus opinion that decides a case narrowly would read: "We reverse."

It is surely true that a proliferation of separate concurring and dissenting opinions can be annoying, confusing and divisive. But such opinions often play an important role in the evolution of the law. By making public the disagreements within the court, such opinions spark a robust discourse about the merits of competing positions. This ongoing debate ultimately strengthens the court's work and enlightens public understanding. To squelch separate opinions would in the long-run undermine the court's authority and credibility.

Moreover, some of the most influential opinions in the history of the Supreme Court were concurring and dissenting opinions. Although they did not command the support of a majority of the justices at the time, they eventually won the day because of the force of their reasoning. Familiar examples, to name just a few, include Justice John M. Harlan's memorable dissenting opinion in Plessy vs. Ferguson and the pivotal separate opinions of Justices Oliver Holmes and Louis Brandeis in free-speech decisions following World War I. History teaches that the work of the Supreme Court should always be seen as a work in progress. The tradition of free and open judicial debate historically has led the court to better results over time.

I do not mean to suggest, by the way, that there cannot be too much of a good thing. The court has many responsibilities, and one of them is to produce majority opinions that state a coherent rule of law. If the justices fell into the habit of issuing nine separate opinions in every case, that would create another form of chaos. Similarly, I do not mean to suggest that narrow decisions are always a bad thing. If the court is unsure of its ground and wants to preserve issues for another day, it should certainly exercise its prerogative to decide a case narrowly.

In the long-run, however, the Supreme Court will better fulfill its most fundamental responsibility--to protect individual liberties and the rights of minorities against the intolerance, indifference and self-interest of political majorities--if it is willing and able to act boldly, decisively and confidently in the defense of those values. The greatest danger is not that the court will act boldly, but that it will act boldly in support of the wrong values.

Geoffrey R. Stone is a professor of law at the University of Chicago and the author of Perilous Times: Free Speech in Wartime.

Copyright 2007 Chicago Tribune Company

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Geoffrey R. Stone