Closing Thought on the October, 2012 Term

Linda Greenhouse points out the worst aspect of John Roberts as Chief Justice: his patient, careful legal nihilism, which bends precedent, distorts history, and ultimately draws all power unto himself:

If there is no mystery about the nature of the chief justice’s views, I remain baffled by their origin. Clearly, he doesn’t trust Congress; in describing conservative judges, that’s like observing that the sun rises in the east. But oddly for someone who earned his early stripes in the Justice Department and White House Counsel’s Office, he doesn’t like the executive branch any better.

He made this clear in an opinion dissenting from a 6-to-3 decision this term in an administrative law case, City of Arlington v. Federal Communications Commission. The question was whether, when the underlying statute is ambiguous, courts should defer to an administrative agency’s interpretation of its own jurisdiction. The answer was clearly yes, according to Justice Scalia’s majority opinion that built on decades of precedent on judicial deference to agencies. The chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”

Congress can’t be trusted. The executive branch is out of control. What’s left?

The Supreme Court.

Um, I hadn't realized that Eric Roberts was appearing in a biopic back in 1996. Wrong robe, of course, but it's the little things...