BOTH sides in our nation’s ongoing immigration disputes are spinning the Arizona v. United States ruling as a victory—plus an occasion to appeal to supporters for more money to battle through the fall election cycle and the predictable next rounds of litigation and legislation. It’s the federal side, however, that has the better claim to success.
Two First Amendment cases from last Term addressed when content regulation is justified by particularly compelling interests. The answer implied by both cases is: not often.
The Roberts Court has now completed its sixth year. This benchmark invites comparisons with earlier Courts. Earl Warren was appointed as Chief Justice in 1953. It was not until nine years later, in 1962, that the Warren Court fully emerged. That was the year in which Felix Frankfurter left the Court, Arthur Goldberg took his place, and the balance on the Court tipped to the more liberal justices. Opinions from the mid sixties—Gideon v. Wainwright (1963) and Reynolds v. Sims (1964) come to mind—mark the Warren Court at flood tide.
William Rehnquist was confirmed as Chief Justice in 1986. Again, it was about nine years, in 1995, before the Rehnquist Court emerged full blown. Rehnquist, so often a lone dissenter before 1986, now had company in the likes of Antonin Scalia and Clarence Thomas. Thus, in the mid nineties, the Rehnquist Court was making its distinctive mark on the Court’s jurisprudence. Illustrative are United States v. Lopez (1995), the first time in sixty years that the Court had declared an act of Congress to be beyond that body’s power to regulate commerce, and Agostini v. Felton (1997), one of a series of cases in which the increasingly conservative Court began dismantling the wall of separation between church and state. Now comes the Roberts Court. Until the appointment of John Roberts as Chief Justice, there had been no vacancy on the Court for eleven years. Then a succession of events changed the face of the Court. Since 2005, we have seen the departure of four justices—Rehnquist, O’Connor, Souter, and Stevens—and the arrival of four new justices—Roberts, Alito, Sotomayor, and Kagan. It has now been six years since Chief Justice Roberts took his seat. Recalling the stories of the Warren and Rehnquist Courts, are we two thirds of the way through another nine year cycle? Is the Roberts Court beginning to take shape? What can we say about this Court?