an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Grasping at French Fries: Evaluating Judge Roberts
So much speculation has erupted throughout the blogosphere and in the mainstream media about what kind of Supreme Court Justice Judge Roberts will be. Some make mention of some of his statements in briefs and legal pleadings. Bernie Meyler (law, Cornell) guesting on PrawfsBlawg discusses a few sentences of his rhetoric in some opinions from his meager two years on the bench. And Kim Scheppele here at Balkinization looks to a case involving French fries on the DC metro. And then there’s talk about whether he was a member of the Federalist Society or not (he wasn’t, as Orin Kerr points out).
We’re really grasping at French fries, I think, to fuel our speculation over Judge Roberts. The only thing we can say for sure is that we have so extremely little to go on. Circuit court judges are bound by Supreme Court precedent, are also bound by the precedent of their circuit. So we don’t know much about how they’ll be when they’re unbound, when they grow comfortable in their Supreme Court robes. And advocates argue their clients’ positions, not their own, so we’ll never know if any of the statements he made as a lawyer were his own beliefs.
Certainly we can read the tiny opus of opinions Judge Roberts authored in his short stint as a judge. But it often takes time for judges to ripen on the bench, so even these will not be very telling. The short of it is that we just don’t know. And that’s what’s so frustrating.
Michael Dorf (law, Columbia) looks to whom Roberts chose to work for:
I doubt that President Bush directly sought from Roberts a commitment on particular issues, and as I share the general view of Roberts as a man of integrity, I am certain that if he were asked, he wouldn’t have provided such assurances. So how can movement conservatives be confident that Roberts will vote as one of them?
The short answer is that they cannot be wholly confident, but the longer answer is that they can take considerable comfort from the company Roberts keeps. He clerked for then-Associate Justice William Rehnquist when Rehnquist was clearly the Court’s most conservative member. He spent most of his career in the federal government, but only during Republican administrations. Thus, while Roberts is entitled to say that briefs he wrote, including those calling for the overruling of Roe, were in the service of a policy set by his political bosses, skeptics are equally entitled to ask why Roberts chose to work for these and not for other bosses.
But the fact that Roberts clerked for then-Justice Rehnquist doesn’t say all that much about what kind of justice he’ll be. Nor does the fact that Roberts worked in Republican administrations.
Perhaps the only thing we can be confident in is that the Bush Administration was not being cavalier about this appointment. I doubt anybody forgot about Justice Souter. So to the extent people are betting on what kind of Justice Judge Roberts will be, I’ll place my bet that the insiders selected a nominee who would be a reliable conservative vote on the Court. After all, I bet that they looked at more of Roberts’ French fries than any of us.
This is a waiting game: FBI reports, Judiciary Committee efforts, etc. Meantime, consider what a transvestite judge might say about Judge Roberts: "He puts his robes on the same way I do, but I am prettier." And pass the French Fries, please.
I don't think they looked very carefully beyond their correct assumption that he's conservative and bulletproof. It's a safe/cynical move from a weak hand. It's what JB would call 'high politics' defended by people who don't believe in such a thing. Read Nathan Newman's comments.
Yes, the "weak hand" of a two- term president, who has gotten confirmed 95% of the judges that he has nominated, who's party controls both houses of congress, and is looking at at least two Supreme Court appointments.
If only this administration could just gain it's footing to combat the Democratic Party leviathan.
Surely, his advocacy work is somewhat limited as a predicative mechanism.
Nonetheless, his work experience, bona fides from insiders, the conservative legal organizations he belongs to, and even his own wife's activies all suggest a certain steady conservative mindset. This takes you only so far, but the idea he's just one big mystery is a bit silly.
Anyway, Souter wasn't really a surprise either. Sen. Warren Rudman, a NE Republican sponsored him, and Souter turned out to be an old fashioned liberal Republican sort on the bench (yeah, that isn't necessary an oxymoron).
Likewise, the balance of Souter/Thomas suggests Bush himself knew Souter wasn't a conservative sort as some define the term.
"even his own wife's activies all suggest a certain steady conservative mindset"
FYI The group that his wife belongs to is a nontraditional pro-life group. They are apparently anti-capital-punishment, they take no position on homosexuality (unlike most pro-life groups), and they champion various liberal causes.
As a conservative Christian, what I am looking for is someone that will decide issues based on the constitution and not be a judicial activist. If all what I have read and heard on the talk shows regarding Judge Roberts, I am of the belief that he is conservative, beholden to no one in the MSM no any foreign government, and follows the letter of the law rather than his "heart" when deciding cases.
This notion of deciding cases "based on the constitution" has always struck me as a pig in a poke. Does that mean we are stick in 1791 or 1866? It has always struck me as a conservative notion that The Supreme Court has the right to say to a state or federal legislature "there are certain types of laws that the majority cannot enact at the expense of individual rights." No judge - left or right - should do that unless a case or law leads the court to that outcome. The essence of judicial restraint is not allowing overarching theories of the constitution (such as "originalism" or "strict construction") to win out over a restrained review of the case and principles before you. Where Judge Roberts stands on this is anybody's guess, but my first impression is that he is likely to be more restrained than Rehnquist, Scalia or Thomas in allowing his broader political philosophy to get in the way of a restrained look at each case. That is encouraging.
mjh21, My only point was that the administration picked this moment to avoid a war in the senate. If things were going differently everywhere else, they would see no need to do this. This administration is flying by the seat of their pants, as always. But if the choice of Roberts is another cynical ad hoc decision the rules have changed a bit.
"As a conservative Christian, what I am looking for is someone that will decide issues based on the constitution and not be a judicial activist"
With all due respect, this comment is meaningless. Conservatives routinely applaud courts when they are "activist" (e.g. when they strike down liberal legislation like the Violence Against Women Act, or when they prevent New Jersey from applying its civil rights laws to boy scouts). They also decry the court when they fail to be sufficiently activist (e.g. when the supreme court recently refused to strike down local legislation that interfered with property ownership, or when the federal courts refused to rule for terry schiavo's parents). Conservatives also support broad constitutional rules without much textual basis in areas like sovereign immunity, and sometimes expressive association (see,e.g. the suppose right to discrimiante against gays).
Also, I don't know what you mean by "As a conservative christian." There are lots of instances in which non-activist, strict interpretations of the constitution would result in decisions contrary to traditionally christian conservative beliefs. What would you have the courts do then?
"Activist" most certainly IS a useless concept, if it's going to be defined in terms of whether the judiciary strikes down laws without reference to whether those laws really were unconstitutional or not.
Striking down constitutional laws, and failing to strike down UNconstitutional laws are equally abuses, one the mirror image of the other. What's wanted is judges who rule correctly, not like stopped clocks, right only by coincidence.
"'Activist' most certainly IS a useless concept, if it's going to be defined in terms of whether the judiciary strikes down laws without reference to whether those laws really were unconstitutional or not. "
So a judge is activist when he disagrees with your view of the constitution? This is all so silly, don't you think? Judges ALWAYS justify striking down laws for some constitutional reason. The question is whether we agree with them in a given case.
If I disagree with a judge's reasons for striking down a law, that doesn't make the judge "activist." It makes the judge wrong in that case. The term "activist" makes it sound as if the very act of going against majority will is invalid, or if pursuing an agenda is invalid, but you've conceded now that neither thing is invalid if it has a sufficient basis in the Constitution. So can we retire the word "activist" ?
What's silly is this absurd pretense on the part of people who don't like certain aspects of the Constitution, (Such as enumerated powers, or the 2nd amendment.) that the text is so inderminant in it's meaning that saying that somebody is wrong about it is indistinguishable from saying that they disagree with you about policy.
If language were so bad at communicating meanings, this blog would be a futile exercise.
mike is correct about 'activism.' every decision rendered by a judge, even the decision not to decide, is an act. there is no passive reception and transmission of the law as if in a valuesless vacuum. and likewise, the decision to not act to restrain a legislature or executive or another court, etc. is itself an act. there cannot be a nonactivist institution or official. so the charge of 'actitism' is merely a rhetorical way of expressing displeasure with some action the other side has taken.
According to some reports , e.g. a recent washington post article, Judge Roberts was counsel to the Bushes during the 2000 Florida election debacle. If this is true, that provides an interesting perspective from which to view the political legitimacy of the judicial appointment process. This would represent a rather crass form of political patronage, akin to the stereotypical official doling out public jobs to those helped his campaign -- a practice located somewhere on the border between politics as usual and corruption.
That oughta give some law professors a field day...