The Supreme Court's Group Hug

The biggest surprise from the Supreme Court term that just ended: Barack Obama hearts the Roberts court. At the end of June, the Democratic candidate praised Justice Antonin Scalia’s 5-4 decision striking down the Washington ban on handgun possession, a ruling that recognizes the right to bear arms as an individual right. Two weeks earlier, from the other side of 4the ideological spectrum, Obama praised Justice Anthony Kennedy’s 5-4 decision allowing enemy combatants to challenge their detentions in federal courts, a rebuke to the Bush administration’s policies toward Guantanamo detainees. Obama’s only major quarrel with the court was the 5-4 decision banning the execution of people who rape children: he said he has long believed that “the most egregious of crimes” deserve the death penalty. When a leading Democrat is criticizing the Supreme Court for not being conservative enough, it’s time for liberals to breathe a sigh of relief.

It’s true that there may be some election-year pandering in Obama’s embrace of a court that many predicted would veer to the right under Chief Justice John Roberts. But by any measure, the term that just ended was hardly a disaster for liberals. On the contrary, liberals won several important victories—not only the Guantanamo and child-rape cases but also a series of employment-discrimination cases in which the court sided with workers rather than employers, by broad, bipartisan majorities.

Indeed, the court’s term was something of a group hug between the liberal and conservative justices. The Supremes were far less divided than they seemed in 2007, when they sniped at one another in unusually personal terms. Despite some high-profile splits at the end, only 17% of the cases were decided by 5-4 votes—down sharply from the previous term, in which 33% of the cases were 5-4 splits. Cases upholding voter-ID requirements, execution by lethal injection, federal efforts to curb child pornography, and the detention of American citizens in Iraq were decided unanimously or by lopsided majorities.

So, what explains the new mood of bipartisan harmony on the Roberts court? At least some of the credit goes to Roberts’s personality and leadership style.

He went out of his way to persuade his colleagues to turn down the volume and lighten up when they disagreed, even spicing up his dissent in a technical telecom dispute by borrowing playfully from Bob Dylan’s “Like a Rolling Stone”: “When you got nothing, you got nothing to lose.”

According to Scalia, Roberts has used his power to assign opinions when he’s in the majority to encourage his colleagues to write narrow decisions that Justices on both sides can accept. “The chief may say, ‘Why don’t you come along with a very narrow opinion? We can get seven votes for that, and it will look a lot better,’” Scalia said on The Charlie Rose Show. “You want to go along with the chief justice because…you want to make the institution work.”

This, as it happens, is precisely what Roberts promised to do at the beginning of his tenure. In July 2006, Roberts told journalists that he was worried about “the personalization of judicial politics,” whereby people identify the rule of law with the way individual justices vote in closely divided cases.

Embracing as a model his greatest predecessor, John Marshall, Roberts said he would use his power to assign majority opinions to promote narrow decisions agreed to by wide, bipartisan majorities rather than by polarizing 5-4 splits. On an evenly divided court, Roberts felt he could convince the liberal and conservative camps that converging on narrow opinions was in everyone’s interest.

During his first term, which ended in 2006, Roberts managed to avoid 5-4 splits—for the most part, he said, because his colleagues were eager to be nice to the newcomer, like prospective in-laws meeting a fiance for the first time at Thanksgiving. Then the honeymoon ended. When various justices were asked in 2007 whether they thought Roberts could rebuild an atmosphere of bipartisan harmony, they were hardly encouraging. Scalia scoffed, “Good luck!” Justice Stephen Breyer suggested Roberts could best foster comity by joining Breyer’s opinions. Kennedy had a similar response: “Just let me write all the opinions!”

And yet, in his third term, Roberts has achieved what his colleagues had thought was nearly impossible. His success is a reminder of the importance of personality when it comes to leadership on the Supreme Court, in which the quirks and temperaments of individual justices are as important as judicial philosophy in shaping the law. Roberts told me that he thought much of Marshall’s success was due to the fact that his colleagues liked and trusted him. Marshall persuaded the justices, at the beginning of the 19th century, to live in the same boarding house and discuss cases over glasses of his excellent Madeira.

Roberts’s success is also a reminder of the chief justice’s limited but real power: as the justice who speaks first at the court’s private conference, he can frame the issues and influence the kinds of cases that the court agrees to hear in the first place. Under Roberts’s leadership, the court has agreed to hear fewer polarizing constitutional cases and more cases of interest to business, which the justices are more inclined to resolve without dividing along ideological lines. Of the 15 cases in which the US Chamber of Commerce filed briefs this year, 80% were decided by 7-2 or higher, and a third were unanimous.

Roberts told me that he thinks that bipartisan agreement in the less-visible business cases can help develop a “culture and an ethos that says, ‘It’s good when we’re all together.’” A sign of Roberts’s success in putting his stamp on the court: he was in the majority in 90% of the cases this term, more frequently than any other justice.

How long will the changed mood last? The role of personality on the Supreme Court shouldn’t be overstated. In cases in which they have strong, preexisting constitutional views on issues from abortion to guns to Guantanamo, the justices are unlikely to persuade one another. That’s why, regardless of Roberts’s current consensus building, the future of the court will be determined by the 2008 presidential election.

With his belly hiding his belt, with his red suspenders and white beard, Glen Parshall is a dead ringer for Santa Claus, except for the snub-nosed pistol he keeps tucked in his back pocket. Parshall spends his days behind the gun cage of Bargain Pawn, in a roughneck North Las Vegas neighborhood littered with homeless encampments, Catholic charities, and pawnshops. It’s no Bellagio. But he is a gentle man who treats his customers with respect, whether hoodlum or homeowner. He knows everything there is to know about weapons and is a stickler for the byzantine rules of gun ownership—the waiting periods, the background checks, the ATF callbacks and information requests.

But just because he obeys the rules doesn’t mean he likes them. Parshall is dissatisfied with a lot of what government does. He hates our gun laws. Hates the war in Iraq. He doesn’t use drugs, but he sees the fight against them as another government power grab. Growing up as a Mormon in Salt Lake City, Par-shall was a Barry Goldwater Republican. Now he’s the kind of voter who should scare the GOP most—and he’s not alone.

Maybe you haven’t heard, but 2008 is the year of freedom. First there was the Ron Paul revolution, in which an avuncular 10-term representative from Brazoria county, Texas, raised more than US$34 million as a pseudo-Republican candidate, garnered more than a million primary votes, and outperformed Rudy Giuliani and Fred Thompson, all on the back of a get-government-off-my-back platform.

Now there’s the Libertarian Party, which sold a little bit of its hard-line liberty-loving soul in exchange for the most respectable candidate it has ever had: recently converted former Republican congressman Bob Barr.

Since 2000, Libertarian candidates have peeled off enough votes from Republican congressional candidates to cost the party races in Washington, Nevada, Montana, and, most recently, Louisiana. But if anything, the GOP platform has grown more committed to foreign military intervention and domestic moralizing. The selection of John McCain was a final insult— most libertarians view him, fairly or not, as pro-war, anti-gun, pro-environmentalism, and anti-free speech (thanks to his advocacy for campaign-finance reform). In Nevada, McCain came in third in the GOP primary, behind Mitt Romneyand Ron Paul. When the state GOP tried to crown McCain at its Reno convention in April, so many Paul supporters showed up that party leaders literally fled the hall, turned off the lights, and postponed the convention.

Land of Liberty. The central goal of libertarianism is hard to disagree with: freedom. Defining it is another matter. Party members I’ve met often speak of freedom as if it were a phantom limb: you’re born with it, but it gets taken from you by the bureaucratic violence of the EPA, the ATF, the DOE, the DEA, the UN, NCLB, NAFTA, and—above all—the IRS. Freedom’s restoration is the magic moment when the nanny state melts away and you can see the life you were supposed to live before the tax auditors and environmental regulators and drug warriors all came to rope, brand, and pen you in for life with their endless rule making and intrusions.

If the freedom that lives in the Libertarian imagination has an earthly home, it is the American West. If it has a temple, it is Nevada. It’s not just the low taxes or the libertine veneer of Las Vegas; Nevada is free, I was told, in part because so much of it is populated by an unbroken and unbowed caste of ranchers, miners, and homesteaders who believe in the primacy of private property.

As you might guess, things that come between a Nevadan and his land don’t sit well, and over the past decade, there’s been nothing more disruptive than the environmental movement’s good intentions. Nye county rancher Jim Berg, 68, doesn’t call himself a libertarian, but he thinks the GOP has lost its will to keep the government from affecting his livelihood. He has plenty of war stories about his county’s showdowns with the federal government, including a 1991 standoff when armed federales came to confiscate cattle belonging to a neighboring rancher who had let his herd graze on off-limits federal land. The Forest Service got some of Berg’s cattle in the dragnet, auctioned them off, and kept the proceeds. “They wanted trouble that day,” he says. “Why else would you gather another man’s cattle with 25 to 30 armed men?”

There is a lot in the complaints in the libertarian heartland that sounds like nostalgia for an idealized American past. Jim Berg will tell you about grazing-rights grievances, but he’s just as quick to lament the death of the ranching lifestyle. “My grandkids have scattered like quail,” he says. “They’ve all gone city.”

This sense that progress has gone too far and too fast unites a large swath of libertarians from coast to coast. To many, modernity just means having our daily lives ruled by mechanisms that have grown so complex that they are beyond comprehension or control. It’s a notion that bonds anti-WTO progressives and anti-UN conservatives alike—and if the party has any real hope of becoming powerful, those seemingly disparate points on the political continuum will have to get closer.

It’s tempting to think of libertarianism as nothing more than old-school Republicanism, but it’s always been partially left-wing, drawing from a long history of American anarchism. The modern challenge is to unite those two wings—or, as magician (and stalwart libertarian) Penn Jillette told me, “Convince the dope guys that the gun guys are OK, and vice versa.” And many libertarians believe the time is now. It helps that the US has been throttled for a century by two parties whose core differences are narrowing. For an electorate having a harder time distinguishing Coke from Pepsi, there’s a thirst for something—anything— new.

The things libertarians care about—being able to gamble legally via their home computers, continuing to homeschool their kids without much interference, keeping taxes low—speak to a lot of Americans. If the old party was cobbled together from hard-line strains of voluntarianism, propertarianism, and paleoliber-tarianism, the new Libertarian Party is essentially suburbanarianism.

Voters alienated by our calcified party system may find in the Libertarians a party that’s a lot like Glen Parshall—armed to the teeth but with a gentle logic and a contagious enthusiasm for freedom in all its forms. Libertarians are getting ready for the mainstream, and mainstream America may finally be ready for them.

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