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View Diary: How justices decide (104 comments)

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  •  Right on Kennedy, Maybe Not on Roberts (7+ / 0-)

    I have argued in the Supreme Court and had a number of cases there as Counsel of Record, and while Roberts was in private practice at the firm that was then Hogan & Hartson he did a moot court for one of my cases before his partner argued it at the Court the next day.  He has a very conservative and church-Catholic view of society that shades his principles and ideals as to how our republic should function and the roles of its institutions.  There is a tension among his paternalistic rules setting (e.g., federalism), his party-Republicanism (e.g., campaign finance), and his historical concern for the institution he leads (e.g., the ACA-saving vote).  My suspicion, actually only a guess, is that the latter trumps as to DOMA.  If you are right about Kennedy and the willingness of the four liberals to concur with his result, then Roberts will not want this historical decision to be made on a 5-4 vote and he will find a way to write his own concurrence and the result will overturn DOMA on a 6-3 vote.  Roberts' desire for the Court to regain some of its standing with the public, or his interest in avoiding the taint of further politicization, will trump his personal conservatism so the Court is not seen as so badly and politically split as a 5-4 decision would indicate.  History will sweep Roberts along, too.

    •  I agree. (2+ / 0-)
      Recommended by:
      lostboyjim, Ian S

      I think a problem with the OP's analysis is that once you're the Chief Justice, you're not going anywhere else before retirement. Partisanship won't vanish, but the Chief Justice doesn't have to worry about party support to keep his job, and is far more likely to be worried about his place in history.

      Workers of the world, unite! You have nothing to lose but your shackles. It is by the picket line and direct action that true freedom will be won, not by electing people who promise to screw us less than the other guy.

      by rhonan on Wed Apr 03, 2013 at 12:18:03 AM PDT

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      •  Indeed (0+ / 0-)

        As far as CJ Roberts goes: career wise he has reached the summit/pinnacle of a judicial career. He has got life tenure and is pretty much the head of the judiciary. So why would he care what others think of him? It's not as if his career depends on it.

        Obama-Biden in 2012: four more years!

        by Frederik on Wed Apr 03, 2013 at 02:04:14 AM PDT

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    •  Split decision? (1+ / 0-)
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      Perhaps a split decision may be coming? DOMA struck down on federalism issues whereas prop 8 survives under the same theory: it’s up to the states to define what marriage constitutes and California was within her right to do so with regards to Prop 8. That way both Kennedy and Roberts might save face and still hold the conservative mantle.

      Obama-Biden in 2012: four more years!

      by Frederik on Wed Apr 03, 2013 at 01:59:08 AM PDT

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