By
Erich Vieth on May 18th, 2009
The New Yorker has published a detailed article on the track record of Supreme Court Justice John Roberts. The conclusion is that he is a “doctrinaire conservative.” Here’s an excerpt:
His jurisprudence, as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
But isn’t Roberts simply following the law?
There is an incredible amount of existing legal precedent (thousands of cases have been decided by the U.S. Supreme Court, and many thousands of additional cases have been decided by the numerous federal courts of appeals and federal district courts. Careful readings of these cases demonstrate that considerable numbers of these legal holdings conflict in both minor and major ways with one another. This ever-growing sometimes convoluted body of decided cases is the backdrop the work of judges, and they are charged to follow precedent, except when they choose not to, and–this is a critical point–their breaks from precedent (e.g., Brown v. Board of Education) constitute some of the Court’s best moments. This backdrop makes for a strange formula for jurisprudential “rigor.” So let’s not pretend that judges are simply sitting on the bench to “follow the law” as though they were solving binomial equations. There is immense opportunity to insert one’s own personal biases in a legal opinion, thanks to the many paths offered by precedent combined with human ingenuity. Recent examples of legal analysis by Jay Bybee (now JUDGE Bybee) would suggest that there is no limitation at all–that legal reasoning is merely a political power exercised by a person wearing a robe.
Lest someone think that this is a hatchet piece on Roberts, I need to point out that I am sympathetic with a few of Roberts “conservative” themes. As one example, I am highly suspicious of judicial remedies for “racial” discrimination where those remedies impose widespread societal changes based on “race.” We should be moving away from a belief in “race,” not further legitimizing it. My personal bias is that we need to get to the point where we can all proudly say that we are all human beings or even that “We are all Africans.”
No one denies that Roberts is affable or that he is a lawyer who knows “the law” inside and out. Based on the convoluted set of existing law, though, combined with the immense discretion available to judges (under the cloak of “follow the law”), lawyers and judges can almost always find principles and cases to support almost any position they care to take. Throughout the history of jurisprudence, then, recurring questions are how should a judge choose among competing precedent and how should a judge apply that precedent? The point was illustrated well by Barack Obama, who as a Senator cast a vote opposing the appointment of Roberts:
In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart.
