The two chief justices

Justice William H. Rehnquist, second from left, in June 1981 with his clerks from the 1980-81 term. John Roberts is on the right.  (Collection of the Supreme Court of the United States) Maybe John Roberts meant it:

I have told people, when pressed, that I prefer to be known as a modest judge. And, to me, that means some of the things that you talked about in those other labels. It means an appreciation that the role of the judge is limited; the judge is to decide the cases before them; they're not to legislate; they're not to execute the laws....

[Y]es, there will be times when either the executive branch or the legislative branch exceeds the limits of their powers under the Constitution or transgresses one of provisions of the Bill of Rights. Then it is emphatically the obligation of the courts to step up and say what the Constitution provides, and to strike down either unconstitutional legislation or unconstitutional executive action.

But the court has to appreciate that the reason they have that authority is because they are interpreting the law. They are not making policy.

And to the extent they go beyond their confined limits and make policy or execute the law, they lose their legitimacy. And I think that calls into question the authority they will need when it's necessary to act in the face of unconstitutional action.

Back in the mid-to-late 1990s, challenging the landmark Miranda decision was much in vogue in conservative legal circles, based on an obscure Congressional statute passed two years thereafter which ostensibly overturned it, but which Justice Departments both Republican and Democratic had refused to enforce. The case was finally teed up to the Supreme Court in the 1999-2000 term, and it seemed clear that Chief Justice William Rehnquist was set to build off the success of the Lopez decision and roll back this key Warren Court precedent.

Except, it didn't happen, and the chief wrote this himself:

Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. While ' 'stare decisis is not an inexorable command,''  particularly when we are interpreting the Constitution, 'even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification.' '

We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See Mitchell v. United States, 526 U.S. 314, 331'332 (1999) (Scalia, J., dissenting) (stating that the fact that a rule has found ' 'wide acceptance in the legal culture'' is 'adequate reason not to overrule' it). While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, we do not believe that this has happened to the Miranda decision.

Overturning Miranda was a conservative dream, but was it worth the cost of the Court's legitimacy? Chief Justice Rehnquist didn't think so. As Jeffrey Rosen wrote late in Rehnquist's life:

[L]iberals have never understood how significantly and frequently Rehnquist departed from doctrinaire conservative ideology, and conservatives have failed to grasp that his tactical flexibility was more effective than the rigid purity of Scalia and Thomas. In truth, Rehnquist carefully staked out a limbo between the right and the left and showed that it was a very good place to be. With exceptional efficiency and amiability he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country... As for judicial temperament, he was far more devoted to preserving tradition and majority rule than the generation of fire-breathing conservatives who followed him.

John Roberts clerked for the Justice Rehnquist in the 1980-81 term, and today's ACA ruling is not the first that seems to have been very much guided by Rehnquist's influence on him.

(Continue reading below the fold ...)