Jeffrey Rosen’s assessment of John Roberts’s Chief Justiceship is mostly a channeling of Stephen Breyer’s opinions. It’s also a farrago of condescension and wishful thinking. An example:
I asked Breyer why Roberts had failed in his efforts to achieve consensus and whether he might ever come closer to achieving these goals. "Will he do better in the future? He can join my dissents!" Breyer replied with a chuckle. But then Breyer said he was always hopeful that new justices will change. "This is a job that people who are appointed have for a long time. ... It takes a while before you have enough experience with the cases in front of you, before you have a view of what this document is, and a view of the institution." That’s why, he said, "[I]t’s very hard to predict how a person will decide things five or ten years in the future."
Translation: there’s still time for Roberts to evolve.
And then there’s this:
[S]ince he has embraced [creating consensus] as the standard by which his tenure should be judged, Roberts presumably understands that he can’t preside over a decade of five-four decisions. Far from going down in history as a unifier in the tradition of John Marshall, he would be perceived as the leader of a partisan conservative Court, one that may be increasingly at odds with a more liberal president and Congress.
Of course, liberals shouldn’t have to move. They’re, after all, not the activists now, but are rather deferring to the will of the legislatures. The novelty of this definition of judicial activism is either lost on Rosen (I doubt it) or embraced because it can be used to batter those who take the language of the Constitution seriously.
Finally, there’s this:
Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena. The fact that conservatives now rely on the Court to win their battles for them--striking down democratically adopted campaign finance laws and integration programs--is a sign of their weakness.
Breyer and his liberal colleagues were not unwavering in their restraint this term: They dissented from the partial-birth abortion decision, despite the fact that bans on the procedure are supported by bipartisan majorities in Congress and in most states. When I asked Breyer how he reconciled this dissent with his commitment to judicial deference, he demurred. "The only question for me was, am I suddenly going to overrule a whole lot of precedent? No. That’s a strong basis.".... But no one is consistent in every case; and the activism of liberals here was an exception, not the rule.
So long as the precedent or the legislature supports the liberal agenda, liberal justices can pose as advocates of judicial restraint, either in the face of past judgments or in the face of legislative majorities. Note that there’s no talk of the Constitution here.