Linda Greenhouse of the NYT comments:
A Supreme Court quiz: Who offered this paean to judicial restraint: “If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case”?
That was nearly 11 years ago, only eight months into his tenure. It was before Citizens United erased limits on corporate spending in politics, before Shelby County v. Holder eviscerated the Voting Rights Act, before Chief Justice Roberts swung for the fences in the Parents Involved case to bar formerly segregated school districts from trying to preserve integration through the use of racially conscious student assignment plans. (Only Justice Anthony M. Kennedy’s separate concurring opinion in that 5-to-4 decision retained some leeway for school districts looking for strategies to prevent resegregation.)
And now we have Trinity Lutheran Church v. Comer, a case argued last week that presents the question whether a state that provides grants to schools for upgrading their playground surfaces can constitutionally disqualify a church-run nursery school from eligibility because of its religious character.
“Having eight was unusual and awkward,” Justice Alito said, according to The Journal article. “That probably required having a lot more discussion of some things and more compromise and maybe narrower opinions than we would have issued otherwise, but as of this Monday, we were back to an odd number.”
That’s a bold statement that hardly needs translation, but here’s mine anyway: We’ve got our mojo back. Consensus? That was so 2016. And the Roberts court in 2017? Now it begins.