CJ Roberts and sentencing law: a series

Law professor Jeffrey Rosen has this extraordinary thought-provoking article in the Atlantic Monthly based on an interview with Chief Justice John Roberts.  As quoted by Rosen, CJ Roberts articulates his views on being an effective Chief and explains why he is eager to get his colleagues to work together better.  As Orin Kerr says, the piece is a must-read for anyone interested in the work of the Supreme Court.

As I explained here during Roberts' confirmation hearings, CJ Roberts may have an extraordinarily hard time bringing consensus to SCOTUS sentencing jurisprudence.  Indeed, read through the lens of the Court's work in Booker and recent capital cases (like Kansas v. Marsh), some of the quotes in the Atlantic Monthly piece could easily be read as a slam on many (if not all) of his colleagues. 

Because I found the Atlantic Monthly piece so thought-provoking, I am planning a series of posts about what CJ Roberts' eagerness for greater consensus could mean for sentencing law (in cases like Cunningham and Claiborne/Rita and capital cases).  In the meantime, I cannot help but spotlight a couple of quotes from the article that read like direct slams on the work of Warren Burger and William Rehnquist as chief justices (and perhaps compliment Chief Justice Earl Warren):

“If the Court in Marshall’s era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have,” he said. “That suggests that what the Court’s been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up.”  Roberts added, “I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy as an institution.”

Because I believe he is a careful and thoughtful speaker, I find very significant that CJ Roberts says "over the past thirty years has been eroding" its capital, and not over the last 40 or 50 or 60 years.  A knock on the Warren Court was how its controversial rulings in the 1960s impacted the perception of the Court.  But CJ Roberts focuses on the modern period (well after the unanimous Brown and the 7-2 Roe) in which Burger and Rehnquist allowed deep divides over various hot-button issues to fester.