TCS Daily

Roberts and Rules of Law

By Max Borders - September 15, 2005 12:00 AM

Watching the confirmation hearings for John Roberts is illuminating for people like me. I had Civics 101, but it never hurts to be reminded that the job of a judge -- especially a Supreme Court justice -- is to interpret the rule of law, based on precedent, as well as the facts presented by each side in a given case. The job of the legislative branch, on the other hand, is far different. And it's easy to forget that. Those who grilled Roberts in the nomination hearings (Biden, Kennedy, et al), would have liked for him to speak as if he were like them -- i.e. legislators selling opinions to constituents. But he refused, as he should have. We needed to know about his judicial philosophy. And that's what he gave us.

Moments at which the Supreme Court has strayed too far from a basic commitment to impartiality have yielded bad decisions and terrible consequences for our country (the recent Kelo v. City of New London comes to mind.) So-called "judicial activism" is the popular term for such straying. And while Sandra Day O'Connor wrote a wonderful and scathing dissent in the Kelo case, she may be remembered as a justice most willing to depart from the wisdom of judicial restraint and methodological focus.


John Roberts, on the other hand, stands out as a nominee who really means that he will not bring his personal baggage to court. His methods may not impress more partisan types, as judicial restraint may not work to their political ends. While Roberts very deftly evaded certain questions that might be politically charged or cause him to end up like Robert Bork, he did so -- I believe -- out of genuine fidelity to the rule of law.


If John Roberts can refrain from discussing his personal feelings and predilections in the nomination room, we should have faith that he can in the Supreme Court, as well. After all, one who is quick to grandstand about his own rectitude, may also be quick to inject said rectitude into his work as a judge. Would you want to be on the other side of the podium from such a justice -- especially if he-or-she is deciding the fate of your person or property? I doubt it. Just like I doubt Suzette Kelo wanted activist justices to sacrifice our rights to own private property in the name of some horribly vague interpretation of the "public benefit" based in utilitarian whimsy.


I readily admit that I -- like others -- want to know if Roberts will monkey with a woman's abortion rights. I'd also like to know if he would protect the institutionalized racism that mars our system of higher education in the name of "diversity." And I sure as hell want to know if he'd overturn Kelo. But if Roberts truly wants posterity to keep him as a shining light for the High Court, he will lead by example in his relative theory-free "bottom-up" judicial methodology. And as much as we may like some of the more activist judges, Roberts judicial philosophy could very well work to the end of consensus-building among the justices. Maybe I'm being naive, but I think the Administration chose him based on these considerations, rather than his perceived stance on Roe v. Wade.


I have certainly never argued that any discipline, much less the law, can be completely free of theory, personal perspectives, and politicization. But a real effort to apply principles such as stare decisis ("to stand by that which is decided"), reflects a commitment to the process of law, which -- whether it maps onto any of our discrete conceptions of right and wrong -- works to the end of a healthy system of justice, and of government overall. Such may seem contradictory, somehow. But a healthy constitutional regime, whether it keeps some morally or politically objectionable laws within its corpus, must not sacrifice its systemic integrity in order to purge any such laws. Efforts to do so undermine the rule of law itself -- which should evolve rather than be the outcome designs by robed legislators. For as we know, when judges attempt to design the law, they not only overstep the bounds of their power, they threaten the very core of justice.

Max Borders is a writer based in the Washington, DC area.



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