In his lecture, The Path of the Law, delivered in 1897, Justice Oliver Wendell Holmes, Jr. observed, "The development of our law has gone on for nearly a thousand years, like the development of a plant, each generation taking the inevitable next step."1 That development has continued for more than a century since Holmes spoke.2 As Holmes noted, "Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies [of what courts will do in fact] more precise, and to generalize them into a thoroughly connected system."3 As documented in Chapters 19-32, much constitutional law is settled today.4 However, as long as different approaches to judicial decisionmaking are held by different Justices of the United States Supreme Court, constitutional law will remain unsettled in various parts.5
From 1994-2005, there were no changes in the Supreme Court's membership. As discussed in Chapters 9-12, and summarized at § 13.4 & Table 13.4, during this time the Court consisted of two formalists, Justices Scalia and Thomas; one Holmesian, Chief Justice Rehnquist; three natural law judges, Justices O'Connor, Kennedy, and Souter; and three instrumentalists, Justices Stevens, Ginsburg, and Breyer. Constitutional doctrine during this period, therefore, had greater amounts of stability than if membership had changed.
For the start of the 2005 Term in October, 2005, Chief Justice John G. Roberts, Jr. replaced Chief Justice William H. Rehnquist. On January 31, 2006, Justice Samuel A. Alito Jr. replaced Justice Sandra Day O'Connor. These two replacements will make some difference in terms of case outcomes. As discussed in this Addendum, Chief Justice Roberts will likely adopt a Holmesian style of interpretation similar to that of Chief Justice Rehnquist, and Justice Alito will likely adopt a formalist style of interpretation, similar to that of Justices Scalia and Thomas. Justice Alito's replacement of Justice O'Connor will thus likely shift the Court in a more formalist direction. Based on the discussion which follows, the placement of Chief Justice Roberts and Justice Alito vis-a-vis their fellow Justices in terms of judicial decisionmaking styles appears at § 13.4 & Table 13.4.
Chief Justice John G. Roberts replaced Chief Justice Rehnquist at the start of the 2005 Term of the Court. His opinions as a judge on the United States Court of Appeals for the District of Columbia suggest that as a Justice he is likely to be a conservative Holmesian, in the mold of Chief Justice Rehnquist, for whom Justice Roberts served as a law clerk during the 1980 Term of the Court.
Naturally, a firm decision regarding the style that a former judge will display as a Supreme Court Justice is difficult to predict with confidence because lower court judges are supposed to follow Supreme Court precedents. For that reason, many circuit court opinions are written in substantially the same way regardless of decisionmaking style of the circuit court judge. In some cases, however, there may be clues in the way facts are characterized, in the way leeways in the precedents are perceived, and in the organization of reasoning. For example, while on the D.C. Circuit, Roberts did not reject the use of legislative history as a way to find plain meaning as would a formalist, although, like Chief Justice Rehnquist, discussed at § 184.108.40.206 nn.75-80, he had an affinity for the view, consistent with a formalist approach, that legislative history should not be used to overrule a text that is clear.6 Judge Roberts did not use policy analysis to help protect the unempowered, as would an instrumentalist. Nor are there examples of gauging results by background normative principles, as is often found in modern natural law opinions.
There are many suggestions in his opinions of a Holmesian approach. For example, Holmesian analysis typically begins with the objective meaning of relevant words, drawing on their underlying purpose and their context, such as related provisions. In A.T. & T. Corp. v. FCC,7 Judge Roberts held that the language of the Commission's regulation dealing with the transfer of telephone 800 service applied to transfers of the traffic aspects of a service plan so that transferees had to assume all obligations of the former customer at the time of the transfers. He rejected an argument of thePage 1621 Commission that the regulation applied only to the wholesale transfer of a complete plan and not the transfer of component parts such as individual billed telephone numbers. Focusing on purpose in addition to literal plain meaning, Roberts explained that the whole purpose of the tariff provision was to ensure that the benefits of 800 service contracts could not be transferred without the concurrent obligations.
Under a Holmesian analysis, finding purpose and relevant context may be aided by broad-based historical inquiry. In a number of his opinions, Judge Roberts has set forth a detailed factual history in order to gain a full understanding of context and purpose.8 A Holmesian approach also has a willingness to consider legislative and executive practice and judicial precedent, in addition to the contemporaneous sources of text, context, and history. In so doing, a Holmesian analysis tends to emphasize judicial restraint embodied in deference to governmental action. Judge Roberts often reflected this deference-to-government predisposition while on the D.C. Circuit. For example, in Graham v. Ashcroft,9 the petition alleged that the FBI had failed to abide by its own procedures during a disciplinary hearing which eventuated in a letter of censure. Judge Roberts wrote that the censure letter failed to qualify as a major adverse personnel action so that judicial review was precluded under the Civil Service Reform Act. With respect to the deference owed Congress, he added that an agency cannot purport to confer rights that undermine a comprehensive congressional scheme, and the Act was such a scheme.
In Consumers Energy Co. v. FERC,10 the Federal Energy Regulatory Commission had allowed the affiliates of a Canadian utility to sell power at market-based rates in the United States because it had offered transmission service "comparable" to that required of a utility in the United States even though the Canadian utility required companies serviced from point A to point B to sell power into the system at point A and buy it back at point B. The prices in this system depended on the degree of congestion at each point. Applying an abuse of discretion standard, Judge Roberts wrote that claims of abuse through creating congestion were speculative, at best, and the FERC could apply a flexible approach which required compatibility on a case-by-case basis, rather than letter-for-letterPage 1622 compliance, because FERC could find that its approach better promotes competitive markets within the United States.
In another case upholding the government's position, Taucher v. Brown -Hruska,11 a suit had been brought against the government by the prevailing party in an action resulting in a declaration that a portion of the Commodity Exchange Act was unconstitutional. Applying a federal statute on the payment of attorneys' fees, the court affirmed a district court ruling that the Commission's defense in the action was reasonable on the merits and, thus, attorneys' fees were not to be paid. The issue on the merits was whether publishers who offered advice on trading in commodity futures were required to register under the Act or whether their actions were protected by the First Amendment. Roberts pointed out that there was no Supreme Court case on point and the only previous circuit court decision had upheld the government's position. Judge Harry Edwards dissenting, saying that the district court had not abused its discretion in ordering the fees to be paid.
In Amoco Production v. Watson,12 Judge Roberts gave judicial deference to an agency's interpretation of its own regulations in a complex and highly technical regulatory program - the Department of the Interior regulation of royalties from the production of coalbed methane gas from federal land. The issue involved the presence of carbon dioxide in the gas which must be removed before the gas will be accepted by a mainline pipeline. The court upheld a determination by the government that the producers owed additional royalties. In rejecting the producers' interpretation arguments, Justice Roberts said, "No cannon of construction justifies construing the actual statutory language beyond what the terms can reasonably bear."
Perhaps Judge Roberts' most interesting constitutional opinion reflecting a deference-to-government approach is Hedgepeth ex rel. Hedgepeth v. Washington Metropolitan Area Transit Authority.13Here the court upheld on its face and as applied an ordinance which forbade eating in the Washington, D.C. subway system. Petitioner, a twelve-year-old girl, had been arrested for eating french fries while waiting on a subway platform. She was handcuffed and taken to a police station where some three hours later she was released to her parents. The key issues were whether the ordinance on its face or as applied violated the Equal Protection Clause, a liberty interest protected by the substantive Due Process Clause, or the Fourth Amendment prohibition on unreasonable seizure. The court found no violations.
Regarding equal protection, Judge Roberts wrote that under Supreme Court precedents rational basis was the proper standard of review because age is not a suspect...