Ambrose: John Roberts court not as radical

It was a cutesy one-liner of the kind some newspaper was sure to quote when the president of People for the American Way said the Supreme Court this past term had “shown the same respect for precedent that a wrecking ball has for a plate-glass window.”

Sorry, I don’t want to interrupt the leftist laughter, but the remark demonstrated a wrecking ball’s analytical acuity.

The court did chuck three precedents out the window, but one of those went back to 1911 and two were “obscure,” as a New York Times story noted. The overriding theme, as a renewed appreciation for the Constitution began ever so softly to assert itself, was a sense of restraint instead of a decisive break with past betrayals of the rule of law.

Justice Antonin Scalia was irritated to the point of invective when Chief Justice John Roberts went half the distance demanded by his logic in several decisions, including perhaps the most important one.

In ruling on behalf of free speech, Roberts did not reject a prior court decision on campaign finance restrictions as a gross infringement on the First Amendment, which it was. He instead accepted the inglorious 2003 precedent, explaining how you could justify exceptions and thereby causing Scalia to fume about a judicial modesty that does more to obfuscate than enlighten.

The majority did seem on its way to reaffirming equality under the law in a ruling against Louisville and Seattle plans to assign students to schools on the basis of skin color, but Justice Anthony Kennedy muddied things up.

His assent included a qualification saying, in effect, you can continue to use racist methods to further integration under certain circumstances.

Kennedy was a key player on this court, sometimes joining the legislatively predisposed liberals, sometimes joining the conservatives more inclined to interpret the actual words of the Constitution.

On balance, though, this split court operated more nearly in a strict constructionist mode than any court for many years, a consequence of two new members nominated by President Bush — Roberts and Justice Samuel Alito — and of Kennedy’s siding with those two and Scalia and Justice Clarence Thomas more than with the other four.

Two of the liberal justices are 74 and deemed likely to retire within the next several years. The person elected president in 2008 could therefore have much to say about whether the court continues to be pretty much half one way, half the other, or whether it will be more weighted in favor of judicial conservatism. Clearly, the issue is not a minor one.

But it’s a mistake to look at the Roberts-led decisions this past term and say something got shattered, such as plate-glass windows, precedent, the republic, the rights of Americans or anything else.

It was mostly a cautious court, less an embarrassment to the founders’ noblest ideals than we’ve been used to lately, perhaps here and there a herald of better things to come, but hardly the new dawn some have hoped for or the wrecking ball so feared by some liberal organizations.

Examiner columnist Jay Ambrose is a former editor of two daily newspapers. He may be reached at SpeaktoJay@aol.com

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