Closet Originalist

September 20, 2005

Holy crap, if I ever again have to listen to another Republican senator tell John Roberts that he doesn’t have to answer questions, I’ll puke on my own shoes! It seems the Republicans spent more time telling him how great he was and trying to convince him to keep his mouth shut than they spent asking him to articulate his views, but they need not have worried. Roberts has proven himself a true creature of Washington by saying absolutely nothing of significance, and saying it at great length.

The continuous hammering from the Democrats concerning the doctrine of stare decisis was as pointless as it was repetitive. No one before the Judiciary Committee being considered for the position of Chief Justice of the Supreme Court is going to say, “No, I see no reason to bind myself with precedent. Seems kind of silly to promote continuity in American law when so many things are so clearly wrong with the way my predecessors have interpreted it. I actually consider myself a demigod beyond the reach of such piddling rules and regulations. Next question, please.” Anyone who expected Roberts to express anything other than a deep and abiding respect for precedent is as foolish as the senators who wasted time asking about it more than once.

As so many have noted, Roberts is presenting himself as humble; a large part of that is keeping his own views under his hat and promising to defer to his predecessors and the other branches of the government. In the wake of the strong Warren and Rehnquist courts, everyone likes the sound of that. Conservatives think an active court is bound to overextend constitutional freedoms, and liberals backed into a corner by the Republican majority fear that an active court will contract those freedoms. To both, the promise of a humble Chief Justice is a promise to keep the culture war out of the unaccountable judge’s chambers and on the floors of an elected Congress where they feel it belongs.

Roberts was very careful throughout the hearings to say that he believes that the purpose of the judiciary is to interpret the law, not to make it. He referred time and time again to his view that the Supreme Court has a duty to be deferential to the intent of the legislature where there is confusion in the law.

Let me say that again: John Roberts has not espoused a view that the judiciary should base its decisions on what the law says. He has said that the Justices on the Court should follow what the lawmakers intended.

Now, Roberts declined time and time again to allow anyone to plaster him with an ideological label, and this makes sense from both a jurisprudential and a political standpoint. Each school of constitutional interpretation comes pre-packaged with philosophical friends and enemies, ready-made counterarguments, and all kinds of academic flak in addition to the inevitable political baggage. This is not a game a nominee wants to play.

But it has become clear that Roberts is in fact an originalist in the mold of Scalia or Thomas, exactly as we were promised. Though he has been very careful to talk around it by making glancing references exclusively to contemporary legislation and the balance of power between Congress and the Court, Roberts has stated multiple times that he considers neither the text of the statute at hand nor the will of the American people to be the prime determinant by which he will resolve disputes over application of the law. Instead, he has referred over and over again to the intent of those who framed that legislation. Roberts is an originalist doing everything he can to hide it without blatantly lying.

He has only spoken about this in the context of the Judiciary’s oversight of Congressional action. The senators questioning him are, of course, concerned primarily with the reach of their branch’s authority, and they are placated when Roberts says he will defer to what the Congress intends when they pass legislation. But it is only a single step from saying the statutory law should be interpreted on the basis of intent to saying that the Constitution should be interpreted on that same basis. After all, anything less would be inconsistent.

Roberts’ mild manner and restraint-laced rhetoric have won him the cautious approval of liberal observers, but in spite of his measured responses he strikes me as a wolf in sheep’s clothing. Completely aside from suspicious connections to the Bush regime (like the fact that Roberts was consulting with Bush concerning a nomination to the Supreme Court only weeks before he decided the case denying Guantanamo detainees trial by court martial in accordance with White House wishes), Roberts looks dangerous.

His years as counsel for the White House and several of his decisions as a federal judge imply that he is overfriendly to executive power, and I fear that in addition to weakening the Congress and the Judiciary, Roberts may well place a proportionately greater amount of power in the hands of the Executive.

But he’ll pass the Committee and the Senate, and likely by a decent majority, too. Everyone who was afraid of a judicial pit bull like Scalia will wipe their foreheads, say a small prayer of thanks, and vote in favor of the guy who doesn’t look as bad as they had feared. And then they’ll take a deep breath and prepare for the inevitable round two as Bush rams yet another conservative through the confirmation process. Hopefully the nation will still be paying attention, and hopefully the Democrats won’t be too exhausted to put the screws to the new one as well.