I wrote last week concerning the importance of the upcoming decision surrounding the Affordable Care Act to the legacy of Chief Justice John Roberts and the legitimacy of his time as Chief Justice. Well, Sahil Kapur over at Talking Points Memo has an interesting write up of the possibility that Roberts may have provided a clue in a recent decision upholding strip-searches that perhaps he is indeed cognizant of how important this decision is for the long-term historical view of his tenure.
“The Court makes a persuasive case for the general applicability of the rule it announces,” Roberts concluded. “The Court is nonetheless wise to leave open the possibility of exceptions, to ensure that we ‘not embarrass the future.’”
The last three words stuck out to Pulitzer Prize-winning court watcher Linda Greenhouse, who wondered in the New York Times whether something deeper might be at play.
“‘Embarrass the future’? The quote, from a 1944 opinion by Justice Felix Frankfurter in a tax case, is usually offered to mean that the court shouldn’t encumber itself by declaring solutions to problems that have yet to emerge,” she wrote. “Maybe that’s all the chief justice meant. But John Roberts is both a careful prose stylist and a man acutely conscious of his and the court’s place in history. There are so many other ways of expressing a minimalist impulse than this unconventional use of the word ‘embarrass’ that I have to wonder whether he didn’t have in mind the prospect of institutional embarrassment, and not only in the case at hand.”