Tipping the balance

Distinguished, polite, intelligent, poised, competent, honest and direct: the press has run out of adjectives to describe President Bush's Supreme Court nominee. What should we really be looking for?

As the US Senate Judiciary Committee gets ready to question Judge John Roberts, whom President George W. Bush has just nominated to the Supreme Court, and the usual partisans get ready to either attack or defend him, what should we should be looking for in a Supreme Court Justice to replace Justice Sandra Day O’Connor, the first woman on the court?  

Some, including Justice O’Connor herself and First Lady Laura Bush, are disappointed that it isn’t a woman. Of course, there is already another woman on the Court, Ruth Bader Ginsburg, and it seems highly likely that President Bush will get another choice or two before the end of his term, and thus the chance to appoint a woman and/or Hispanic or other minority. Actually, talk of a “Jewish seat” or “African-American seat” or “female seat” seems a bit archaic when there have been more than one of each sitting at the same time. Also, if the Court is supposed to be about justice, and constitutional rights are not determined by majority vote, then proportional representation of the judges seems somehow the wrong way to go about it.

So how can we best achieve “Equal Justice Under Law,” the stirring words inscribed on the Supreme Court building?

Two things need to be considered. One is the nature of the questions that come before the Court, and the second is its current composition. As Alexis de Tocqueville first noted in the 1830s, “there is hardly a political question in the United States which does not sooner or later turn into a judicial one”. In the 1930s, the Gershwins, in their Broadway musical “Of Thee I Sing,” portrayed the Supreme Court as resolving all the major issues of the day: “All cases of the sort are decided by the judges of the Supreme Court.”.

It’s still true, only more so. All the major controversial public questions in the United States, from abortion to gay marriage, from affirmative action to the death penalty, are decided by the courts, and ultimately by the Supreme Court. Legislators elected by the people may pass laws, but the final word on interpretation, application, and constitutionality is up to the courts. Recently the Court decided that it is unconstitutional, and thus improper, to criminalise sodomy; while it is constitutional, and thus proper, for a city to take property from a private citizen and hand it over to another private citizen for development (a “public use,” the Court says, 5-4).

The problem, in my view, is that courts can all too easily impose their values on the rest of society, under the pretext of interpreting the laws and constitution, to the point of effectually amending the constitution by majority vote of the judges. There is little or nothing that the people can do about it. Partly, this happens because politicians are happy to have controversial issues resolved by the courts. This enables them to avoid taking personal stands which are sure to lose them friends and votes. Partly, this happens because popularly enacted constitutional amendments are so difficult to achieve. Two-thirds of both houses of Congress and three-quarters of the states are needed to amend the Constitution. These repeated super-majorities are hard to come by, obviously.

Because of the often unchecked power of judges, particularly justices on the Supreme Court, it is extremely important to know who those justices are. Will they rule according to the laws that have been enacted and the Constitution that is written (the very reason for having a written constitution)? Or will they import their own value preferences, often out of thin air, and claim constitutional warrant for them? This happened most notably in 1973 when the Court created a constitutional right of abortion out of derivations from “emanations from penumbras” of specific provisions of the Bill of Rights (which, of course, nowhere mention abortion).

This leads us to the current composition of the Court. The Court has nine justices, who, like Gaul in Caesar’s reckoning, are divided into three parts, though of unequal size. Four are fairly predictably liberal, Stevens, Souter, Ginsburg and Breyer. Two are the mushy middle, Kennedy and O’Connor, and three are conservative, Chief Justice Rehnquist (whose health is notably failing), Scalia and Thomas. The retirement of Justice O’Connor means that a crucial swing vote is being replaced. Thus, the stakes are high, as many important cases are decided 5-4. If John Roberts is a conservative on the model of Rehnquist, whom he clerked for, then the Court would be fairly evenly split, 4-4, with Kennedy as the switch hitter. Even if he were a stronger, less pragmatic conservative like Scalia or Thomas, which seems unlikely (given his resumé and his judicial record), still Roe v. Wade, the 1973 decision that created abortion as a constitutional right, would remain intact, as Kennedy would still be around to join the liberals on the court to reaffirm it, as he did in 1992 in the Casey decision.

Senators who opposed Judge Roberts a few years ago, when he was appointed as a federal appeals judge of the United States Court of Appeals for the District of Columbia Circuit, notably Democratic Senators Schumer of New York, Kennedy of Massachusetts, and Durbin of Illinois, promise to grill him on his specific stands on controversial issues. He will undoubtedly refuse to answer those questions, as they would prejudge matters that may come before him. The Democrats found that answer satisfactory when Clinton appointed the liberals Ginsburg and Breyer. So it seems likely, barring the unforeseeable, that he will be confirmed, probably before the Court resumes sitting on October. 3.

But broader questions of judicial philosophy and character are certainly appropriate to raise at his confirmation hearing. In that regard Judge Roberts gives every sign of being a lawyer’s judge, and indeed, a person with a judicious temperament who will listen, follow arguments carefully, with attention to the law as a skilled craft, and decide on the basis of the law and constitution as they were enacted, rather than the law as he would prefer to see it. Only time will tell.

Dwight Duncan is a professor of constitutional law at Southern New England School of Law.

Links

"A Competent Conservative". By David Brooks. New York Times. July 21, 2005. Reg. required.

"A Legal Life". Graphic timeline of Roberts' legal career. New York Times.

Legal profile of Hon. John G. Roberts Jr. FindLaw.com