Book Review By M. Kelly Tillery Accuracy, Reality and Nuance A Thorough Evaluation of the Relationship Between the Roberts Court and the Constitution

Uncertain Justice Marcia Coyle’s “The Roberts Court: The – The Roberts Court and Struggle for The Constitution” (Simon The Constitution & Schuster, 2013, 464 p.) and Tribe’s Written by Laurence Tribe and fellow Harvard Law School Professor Joshua Matz Mark Tushnet’s “In The Balance: Law 401 pages and Politics on The Roberts Court” $ 32, Henry Holt and Co., 2014 (W.W. Norton & Co., 2013, 352 p.), but this one does the most, the best, in the arvard Law Professor and fewest pages. U.S. Supreme Court scholar While this court has had more than its H Laurence Tribe and co- fair share of 5-4 decisions with Justice author Joshua Matz masterfully distill Kennedy the deciding vote between the the debacle that is the Roberts Court’s right of Roberts, Scalia, Thomas and first decade into only a few hundred Alito and the left of Breyer, Ginsburg, pages of quite readable, informative and Kagan and Sotomayor, neither entertaining prose. ideological ‘block’ is entirely monolithic Those who attended Tribe’s recent PBI or predictable. Nor is the pivot, Justice CLE presentation in Philadelphia, for Kennedy. Thus, “Uncertain Justice.” which this book served as the handout, Even the most jaded liberal critic of will find the professor’s remarks lifted this court will be surprised to find that almost verbatim therefrom, but also although it is, by tradition, called the a further cornucopia of political and “Roberts Court,” the chief justice is constitutional philosophy, thoughtful a la William Howard Taft. less in control than he is herding cats analysis of the Roberts Court key Co-author Matz, a recent Harvard law most of the time. As Tribe and Matz opinions, and a variety of court trivia. grad (and Penn undergrad), is clearly write, even the new Four Horsemen Professor Tribe knows whereof he a man who deserves attention. After disagree, and sometimes vehemently. speaks and writes. He served as a law clerking for a district court judge in New For example, in Maryland v. King clerk to Associate Justice Potter Stewart York, and a Ninth Circuit judge in Los (2013) we find originalist Scalia in the (1967-1968), has taught constitutional Angeles, he now serves as a law clerk company of liberals Ginsburg, Kagan law at Harvard for almost 50 years, to Associate Justice Anthony Kennedy, and Sotomayor arguing that arrestees co-founded the American Constitution arguably the most important voice on cannot be constitutionally DNA-tested Society, and has written at least seven the Constitution on the court and in the without a warrant. books on the Constitution. He has nation. This work provides fascinating argued 36 cases in the Supreme Court Tribe is well known as a liberal insights into each justice’s style, with a record of 19 wins, 15 losses and and tough critic of the Roberts Court, philosophy, predilections, and, yes, two draws. particularly of the new four horsemen agenda. Originalists may not view the Tribe taught constitutional law to (Roberts, Scalia, Thomas and Alito), but Constitution as a “living, breathing Chief Justice John Roberts, Associate his work is a sober, measured, temperate document,” but none can deny that this Justice Elena Kagan and President and balanced review, analysis and court is very much alive and changing. Barack Obama. While judiciously critique of the court’s most important And, as it does, so do our rights as U.S. refraining from public comment on decisions over the last nine years. citizens. Roberts’ mettle as a student of the The authors’ prologue tells readers The prose is unlively, but sometimes Constitution, he has remarked that that they “… aim to bring to life the witty and always well thought out Obama, his research assistant for two nine lawyers who gather in a conference and footnoted. Only in a book about years, was “the best student I ever had.” room and create the rules by which we the Supreme Court would one find If Hillary Clinton wins in 2016, do not live.” And they do so, quite nicely. expressions such as “an aggressive be surprised if Obama’s post-presidency There are other excellent works on footnote,” “muscular dissent,” “head- includes a seat on the Supreme Court, the Roberts Court, such as reporter fake argument” or “the influence

46 the philadelphia lawyer Spring 2015 This work provides fascinating insights into each justice’s style, philosophy, predilections, and, yes, agenda. of Immanuel Kant in evidentiary hostile to civil rights, averse to criminal As disturbing as some of this court’s approaches in 18th Century Bulgaria.” defendants, and too deferential to the rulings and the future decisions they And while there are lighter moments such government on national security issues. portend are, the chief justice’s unilateral as why Justice Ginsburg is “The Frozen But the authors make clear that while non-judicial decision on May 4, 2010 Yogurt Justice” or the awkward moment such is not an unfair or inaccurate picture, to seal the great bronze doors at the of the Phillie Phanatic embracing Justice the reality is much more nuanced. front entrance to the court may be the Alito in chambers, it is remarkable to see The good news is that this court grants most disconcerting. Justices Breyer how some of the justices can be so petty, only 1 percent of petitions for cert and and Ginsburg wrote at the time, “This personal, juvenile, and, on occasion, now only issues about 75 opinions per court’s main entrance and front steps are arguably rude and unprofessional. Easy term. Most “law” in the federal courts is not merely only a means to, but also a to see why Alexander Bickel’s “nine still made/found in the trenches by the metaphor for, access to the court itself.” scorpions in a bottle” label is rather apt. 678 district court judges who handle the This court, and the justice it dispenses, While the Roberts Court has issued almost 400,000 cases filed each year. may now be accessible and beneficial 725 opinions, the authors focus on fewer At his 2005 Senate confirmation only to the rich and powerful. than 40 (or 5 percent), selecting those hearing, Roberts famously said, “It’s concerning our most fundamental rights my job to call balls and strikes.” No M. Kelly Tillery ([email protected]), such as voting, free speech, affirmative one in the legal community, much less a partner with Pepper Hamilton LLP, is action, health care, gun ownership, Tribe and Matz, took his umpire analogy Editor-in-Chief of The Philadelphia Lawyer. privacy, marriage and campaign finance. seriously, even if a bevy of Republican In each, the Roberts Court has made senators did. As Justice Kagan opined at striking changes in the fundamental her confirmation hearing, “… I do not fabric of constitutional law. Some argue, think that that is right, and it is especially with ample evidence, that this court is not right at the Supreme Court level, decidedly pro-business, anti-consumer, where the hardest cases go.”

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