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July 20, 2005

Evaluating Roberts: Sympathy for the Devil

I've actually had a chance to read through Roberts' hearings when he was up for the Court of Appeals and I have to admit I feel (relatively) more hopeful.  I still think Dems should filibuster him, but then I think a 30-year term on the Court is not a President's personal plaything, so the opposition should demand "advise" as well as "consent."

But that said, here's the best case scenario on Roberts.  There is still a reasonable possibility that Roberts has just kept his mouth mostly shut for three decades and will emerge as a raving ideologue to the Right of Clarence Thomas.  But then, there is some chance that he was mostly an ambitious guy who hitched himself opportunistically to the Right in the Reagan era and could surprise his supporters once he is on the bench.

But the most likely possibility is that he won't be surprising and here's my bet on how he will perform from the evidence.   In general, he will be less of a judicial activist than O'Connor in both bad ways but also potentially good ways.

Where there is no constitutional issue, he will unquestionably interpret statutes in a conservative manner, and where there is ambiguity in a statute, I am sure that Roberts will likely always take the interpretation that favors corporate and rightwing interests.  But O'Connor was no different as a dependable vote for business interests. 

But reading his decisions and his statements in the hearings, Roberts really does seem to believe in deferring to elected government, which is probably not surprising for someone who spent so much of his career representing governments arguing on behalf of courts not overriding their power.

I thought this remark Roberts made in the hearings was telling when he was asked about when courts should defer to elected bodies:

...the constitutional limitation doesn’t turn on whether it’s a good idea. There is not a ‘‘good idea’’ clause in the Constitution. It can be a bad idea, but certainly still satisfy the constitutional requirements.
In a sense, this is the point of democracy.  The people have the right to enact bad ideas without judges trying to second guess them.  Roberts seems skeptical of grand theories of judicial interpretation-- interestingly quite at odds with Bush's invocation of wanting "strict constructionists" or textualists:
I just don’t feel comfortable with any of those particular labels...in my review over the years and looking at Supreme Court constitutional decisions, I don’t necessarily think that it’s the best approach to have an all-encompassing philosophy.  The Supreme Court certainly doesn’t. There are some areas where they apply what you might think of as a strict construction; there are other areas where they don’t.
He actually gave an example of a case where a law requiring payment to workers at specified intervals was struck down as a historically bad approach to judicial activism:
Several Supreme Court cases follow the same principle in what people loosely call the Lochner era. I think that’s an example of judicial activism. A policy judgment had been made by the State legislature in that case to address a real problem, the inequity in negotiating positions, the fact that employers were frequently not paying employees. I think there were a lot in the mining industry that were directly affected when wages were due, but many months later, and that was a policy judgment. I don’t think that was a constitutional evaluation.
A relatively encouraging statement in regards to not being eager to revive the "Constitution in Exile" of Lochner.

And probably the line that most endeared him to me (in the way any pro-corporate, anti-union judge can endear me) was when Roberts essentially mocks his fellow conservatives like Scalia for styling themselves as "textualists."  Citing the federalist "sovereign immunity" doctrine of exempting states from lawsuits by their own state employees, Roberts said:

The Eleventh Amendment says the citizen of another State [can't sue a state], so how does it apply with citizen of the same State if you are going to be a strict constructionist?
This doesn't mean Roberts is against the sovereign immunity line of cases, but I appreciate a little skepticism that it is all a mandate from the Founders.

On a small substantive point, he actually made this interesting argument on why guaranteeing adequacy of counsel for criminal defendants was a good idea:

I have certainly seen the cases where the counsel, whether attained or appointed, has been inadequate.  I mean, some of them, you know, where the counsel was asleep or not present or the type of conduct, even apart from whether particular motions were made or not. So the answer to your question is, no, it certainly can’t be the case that in all cases they receive adequate representation.

I have long been of the view that whether you’re in favor of the death penalty or opposed to it, the system would work a lot better, to the extent that defendants have adequate representation from the beginning. The reason a lot of these cases drag out so long is because you spend decades scrutinizing the conduct of the lawyer in the initial case. If you make sure that there is adequate representation in the beginning, that should obviate the necessity for that, in most cases.

So a conservative argument for adequate representation but maybe the best we are likely to get.

Roberts seeming commitment to judicial restraint (and he could be faking it  of course) no doubt means that on civil liberties or abortion rights or gay rights, Roberts will be less of an activist than O'Connor in protecting constitutional rights.  But in other areas, he may actually be less likely to undermine federal or state laws protecting those rights, as O'Connor did when she voted to gut state affirmative action laws on contracting, overruled New Jersey when it banned discrimination against gays by the Scouts, and voted to overrule property decisions by state and local governments (the latter a point I note in my Kelo post).    O'Connor came to the bench with a legislator's attitude and seemed quite willing to impose her personal views, good and bad, as constitutional doctrine.  

The reality is that if the Court fails to protect civil liberties or civil rights, we still have the option of passing legislation to protect it as an alternative.  But the greatest danger from a conservative Justice is a vote to constitutionally ban progressive legislation, from which we have no appeal.

The most worrisome point indicating lack of judicial restraint by Roberts is his federalist dissent in Rancho Viejo, LLC v. Norton, where in an en banc decision on whether to rehear a case, he indicated the federal government might lack the power under the Commerce Power to enforce the Endangered Species Act in cases where the animal involved is purely locally-based.  But an alternative reading of his decision is that he just didn't like the reasoning of the original panel.  He cited a Fifth Circuit decision which UPHELD the Endangered Species Act as constitutional as having better reasoning than the DC Circuit decision.  Roberts stated that a "review would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent."  He still seems to have that federalist urge, but unlike his colleague Judge Sentelle who explicitly wanted to overrule the Endangered Species Act, Roberts was much more restrained.

And in Barbour v. Washington Metropolitan Area Transit Authority, Roberts joined a majority that a state agency's acceptance of federal funds can be conditioned on its waiver of Eleventh Amendment immunity from state employees suing them for labor rights violations.  This is a crucial position for Roberts, where he differed from his colleague Judge Sentelle who wanted to deny the federal government the ability to use its spending power in this way, since as long as the federal government can attach conditions to federal money, progressives can actually get around almost any formal block on federal power.  For example, if the Court ever says the federal government can't pass a law, Congress can just pass a law requiring the states to enact the same law or face losing federal funds. 

So to the extent that Roberts sticks to these principles, he will be a conservative Justice but not one that will use his thirty years on the bench to block a lot of progressive legislation from the bench.

Again, he may be a raving activist lunatic beneath the hood, but on the evidence he may be exactly what Bush says he is, a judge who won't legislate from the bench.  If that's the compromise that Dems have extracted through the threat of a filibuster, I'll take that as a small victory.

Posted by Nathan at July 20, 2005 10:44 PM