How Would John Roberts Have Ruled in Eldred?

While reading Jeffrey Toobin’s latest dispatch on Chief Justice John Roberts, I was struck by the exchange in the opening paragraphs over the “preclearance” provision of the Voting Rights Act. As Toobin explains it, preclearance refers to

Specifically, the bill, signed by President George W. Bush in 2006, kept in place Section 5 of the law, which says that certain jurisdictions, largely in the Old South, have to obtain the approval of the Justice Department before making any changes to their electoral rules, from the location of polling places to the boundaries of congressional districts. A small utility district in Texas challenged that part of the law, making the same argument that members of Congress had just discounted—that this process, known as preclearance, amounted to a form of discrimination against the citizens of the New South.

Now for the exchange.

Roberts was relentless in challenging Katyal: “So your answer is that Congress can impose this disparate treatment forever because of the history in the South?”
“Absolutely not,” Katyal said.
“When can they—when do they have to stop?”
“Congress here said that twenty-five years was the appropriate reauthorization period.”
“Well, they said five years originally, and then another twenty years,” Roberts said, referring to previous reauthorizations of the act. “I mean, at some point it begins to look like the idea is that this is going to go on forever.”

This, of course, was precisely Lawrence Lessig’s argument in Eldred vs. Ashcroft, the tactical flaws of which Lessig described in Legal Affairs in 2004.

I am a constitutional scholar whose first passion is constitutional interpretation. And though constitutional law courses never focus upon the progress clause of the Constitution, it had always struck me as different in an important way. Every other clause granting power to Congress simply says Congress has the power to do something—for example, to regulate “commerce among the several states” or “declare War.” But in the progress clause, the “something” is something quite specific—to “promote . . . Progress“—through means that are also specific—by “securing” “exclusive Rights” (i.e., copyrights) “for limited Times.”

In my view, our constitutional system placed such a limit on copyright as a way to ensure that copyright holders do not too heavily influence the development and distribution of our culture. Yet, as Eldred discovered, copyrights have not expired, and will not expire, so long as Congress is free to be bought to extend them again.

Is there any reason why Roberts would not take Lessig’s side — the right side, in my view — in Eldred? Toobin suggests an answer.

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

i.e., maybe not. Which is a shame. I noticed that Toobin never addressed the federal preemption controversy, which has caused considerable consternation.

By preemption, I’m referring to the question of whether federal regulations preempt state regulations. Michael Greve, one of the most impressive conservative legal scholars, has written extensively on this issue — this is one of the domains where the Roberts Court has taken serious fire from conservatives and centrists. Greve does not cite Roberts as the principal villain, and he has been more restrained on the issue than Clarence Thomas. But I’ve heard sharp criticisms of Roberts on the issue that reinforce the general impression that he is more narrowly ideological than he lets on.

P.S. A brief note: this post is speculating re: what Roberts might have made of Lessig’s argument. Speculating. Hence the speculative title. And Roberts did, as Greve notes, dissent on preemption. That is, Roberts came down, rightly, on the “pro-business” side. In March, Robert Barnes wrote,

Justice Ruth Bader Ginsburg was the lone justice who voted in favor of allowing the injured to sue in both cases. Roberts and Justices Antonin Scalia and Samuel A. Alito Jr. voted for the manufacturers in both cases, and Vladeck parts ways with Englert in saying he thinks those three justices make up a nucleus on the court “particularly sympathetic to the needs of regulated interests.”

If true, I tend to think that this would be a good thing. But Englert, in contrast, says:

To Roy T. Englert Jr., who frequently represents business clients before the court, that is an indication that the court “calls them as they see ‘em.”

And that’s the question — how seriously does Roberts take his federalism? This is what we don’t know, and this is what has made some in the business world nervous about Roberts.