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Judge Roberts on Trial

1.

Almost every recorded political statement John Roberts has made throughout his life, from adolescence to his nomination as chief justice, suggests that he has strong conservative political convictions and instincts, and many people naturally fear that he will use his great power on the Supreme Court in the service of his politics. He promised that he would not, but the Senate Judiciary Committee should have been more effective than it was in testing that promise. In fact it failed dramatically in its responsibility to do so.

In his public career Roberts has opposed improving protection for the voting rights of minorities; held that it would be constitutional for Congress to strip the federal courts of their powers to supervise racial integration; denigrated efforts by a group of women legislators to reduce gender inequality in the workplace; referred to the right of privacy as “so-called”; signed a brief advising the Supreme Court to overrule Roe v. Wade; and described a Supreme Court decision outlawing a moment of silence that might be used for prayer in schools as “indefensible.” (See William L. Taylor’s recent article on Roberts’s career in these pages.1 )

In the Senate hearings now concluded, Roberts repeatedly said that the more outrageous of these opinions were only those of a lawyer doing his job, in the Justice Department and the White House, for a very conservative client: the Reagan administration. But of course he did not have to join that administration and the tone of many of his comments suggests not just an obedient staff member but an enthusiastic proponent. The Bush administration has refused to allow senators to see Roberts’s more recent memoranda, written when, as deputy solicitor general in the first Bush administration, he had more responsibility for making policy. We can only speculate about what political opinions these would reveal.

Nor is there much in Roberts’s record as disclosed to the Senate that suggests any personal impulse to moderate the right-wing policies he has defended or any concern for those at the bottom of our society whom such policies would injure. He did advise his superiors that stripping the courts of their jurisdiction over the use of busing as a remedy for racial inequality, though in his opinion constitutional, would be “bad policy.” But he said it would be bad for technical reasons: because, as he told Senator Herbert Kohl, it might “lead to a situation where there’s arguable inconsistency and disuniformity in federal law.” He did advise the administration to sign a treaty condemning genocide, but only because a failure to sign it would be bad for the nation’s image. As a lawyer in private practice he acted pro bono in advising a gay rights group preparing for a Supreme Court challenge to Colorado’s discriminatory constitutional amendment. But he did so, he told Senator Richard Durbin, because the partners of his firm asked him to, and he seemed happy to add, in response to Durbin’s further question, that he would “of course” have been willing to advise Colorado how to resist the challenge if its officials had walked through his door first.

We find no greater reassurance that Roberts will not use his power on the Court to advance a right-wing political agenda when we study his decisions during his brief term as a judge on the District of Columbia Circuit Court. In one of the two most politically sensitive of his cases he declared that the federal government has no power under the Constitution’s interstate commerce clause to force a California developer to protect an endangered species of toad that has so far been found only in that state. In the other case he joined an opinion declaring that the courts must show great deference to the President’s opinion that international treaties, including the Geneva Conventions, do not protect the Guantánamo prisoners. Whether or not these positions are correct in law, they offer no reason to think that Roberts would often hold, in difficult cases, that the law is contrary to what a conservative would wish it to be.

Roberts plainly saw the Senate confirmation hearings as his best opportunity to dispel any suspicion that he would be a political judge, so we must look with some care at the record of those hearings. It is important to be clear what we are looking for. Roberts declared often enough throughout the hearings—indeed, he took every possible opportunity to declare—that he would be guided in all his decisions by “the law” and not by his personal politics or his faith or by anything but the law. In his introductory remarks he said that he would decide every case “according to the rule of law” and that his job was that of an umpire calling balls and strikes but not pitching or batting. He repeated his vow to decide “according to the rule of law” throughout the hearings. We must ask whether, for Roberts, these repeated declarations can have any substance. We can only answer that question by discovering how he decides what the law is when the pertinent constitutional or statutory provisions are vague or abstract. Does his method of legal reasoning in such cases provide a filter, or protective screen, between his politics and his judgment about what the law requires?

As Senator Joseph Biden reminded Roberts, an umpire cannot set the strike zone: that is determined by the explicit rules of baseball. But a Supreme Court justice faces no such constraint. The great constitutional clauses and much crucial legislation are drafted in highly abstract terms that demand interpretation. Much of this is abstract moral language: the Constitution demands “due” process, forbids punishments that are “cruel” as well as “unusual,” commands “equal” protection of the laws, and outlaws “unreasonable” searches and seizures. Important Supreme Court precedents rule out “undue” burdens on women seeking abortions, for example, and make the constitutionality of laws depend on their “rationality.” Statutes often make the liability of a person or corporation turn on whether they have behaved in ways that are “unreasonable” or even “unconscionable.” The bare statement that a judge should enforce “the law” when dealing with clauses that are so abstract tells us nothing: the crucial question is how the judge should decide what the law is.

Roberts himself demonstrated the difficulty and importance of that question in a crucially important statement he had carefully prepared. He pointedly disagreed with the constitutional philosophy often called “originalism,” which is the thesis that judges ought to interpret the abstract moral clauses of the Constitution by asking how the framers of each clause would have expected that clause to be applied—that judges should decide what punishments are “cruel,” for example, by referring to what punishments those who wrote the Eighth Amendment in the eighteenth century thought cruel. On that test, capital punishment, which was of course practiced very widely then, would not be cruel. Some very conservative jurists, including Justices Antonin Scalia and Clarence Thomas and former judge Robert Bork, have explicitly adopted that view of constitutional interpretation.

When Scalia tried to defend this view in a discussion of his judicial methods at Princeton some years ago, the objection was made that originalism, so understood, ignores a crucial distinction between what the framers intended to say and what they expected would be the effect of their saying what they intended to say.2 The framers might have set out their own particular views about what counts as cruelty in punishment, what counts as a denial of equal protection in legislation, and so forth in the constitutional clauses they wrote. But they did not. Instead they chose to lay down general moral principles. So true fidelity to their intentions requires judges to ignore the framers’ concrete opinions and do their best to apply these principles as moral principles: to decide, for themselves, that is, what punishments are in fact cruel and what treatment is in fact equal.

Roberts explicitly accepted this objection to Scalia’s version of originalism. In reply to a question from Senator Charles Grassley, he said, about the equal protection clause that was adopted after the Civil War,

There are some who may think they’re being originalists who will tell you, Well, the problem they [the framers] were getting at were the rights of the newly freed slaves. And so that’s all that the equal protection clause applies to. But, in fact, they didn’t write the equal protection clause in such narrow terms. They wrote more generally…. We should take them at their word, so that is perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it.

Liberal commentators were pleased to learn that Roberts rejects a method of interpretation that they associate with Scalia and other right-wing justices. But he said nothing about how he would decide the great moral questions about due process and equal treatment that, on his understanding, the Constitution requires justices to decide. Rejecting Scalia’s “originalism” increases the responsibility of contemporary judges, but it does not tell them how to exercise that responsibility. Suppose judges must decide, for instance, whether it is consistent with the Constitution’s command of “equal protection” of the laws that a state university grant some limited preference to minority applicants, or whether a state government respects “due process” when it outlaws early abortion. If they may not rely on historical evidence about whether those who wrote those phrases would have expected them to condemn affirmative action or permit making abortion a crime—if judges must ask themselves directly what answer follows from the abstract moral language the framers laid down—then how can they help putting into effect their own convictions, conservative or liberal, about whether affirmative action is fair or whether abortion is immoral?

The cynical view of many lawyers is that judges simply follow their own political preferences and disguise their doing so by announcing that they are following “the law.” These lawyers think that constitutional adjudication is only politics by a grander name, that if a president appoints someone with the policy preferences of John Roberts to the Supreme Court, the nation will then be governed by a very conservative interpretation of abstract clauses of the Constitution. The Supreme Court’s outrageous decision in Bush v. Gore reinforced that cynical view because in order to ensure that Bush became president, the justices who preferred him ignored the doctrines of constitutional interpretations they had previously embraced.3 But most judges insist that there is a difference between what the law requires them to decide, even when they are applying the very abstract moral language of the Constitution, and how they would vote if they were legislators free to vote in accordance with their own policy preferences. How is that possible?

A judge can draw that distinction in such cases only if he has, in addition to his partisan commitments and policy preferences, political convictions of a different and independent kind: convictions about the proper role of a judicially enforceable constitution in a democracy. A constitution shapes democracy by assigning powers to different institutions—by specifying the composition and responsibilities of the legislative, executive, and judicial branches—and it regulates democracy by creating individual rights that act as constraints on what those different branches of government may do. Our constitution, for example, limits the powers of Congress to matters of national concern, leaving purely local issues to state government, and it also limits the power of all branches of government by specifying that no branch may use censorship as a tool of government. But as I have said, it imposes these structures and constraints in very abstract language: it declares that Congress has power only over “interstate commerce,” and that government must not invade “the freedom of speech.” Judges can interpret that abstract language only by appealing to a vision of a desirable, workable form of democracy that they believe both fits and justifies the overall structure of the Constitution. They can then justify choosing one reading of the abstract clauses rather than another by explaining how that reading makes a better contribution to democracy so conceived.

  1. 1

    The Nominee,” The New York Review, October 6, 2005.

  2. 2

    See the exchange between Scalia and me in Antonin Scalia, A Matter of Interpretation (Princeton University Press, 1997), at pp. 115ff and 144ff. See also my articles, “Fidelity as Integrity: The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve,” 65 Fordham Law Review 1249 (1997), and “Bork’s Jurisprudence,” University of Chicago Law Review, Vol. 57 (1990).

  3. 3

    See my article “A Badly Flawed Election,” The New York Review, January 11, 2001.

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