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