- The Washington Times - Monday, July 25, 2005

I have known Supreme Court nominee John G. Roberts for 25 years. I had the privilege of working with the Mozartlike prodigy at the Justice Department during the Reagan administration.

To ask what school of jurisprudence inspires Judge Roberts would be like asking Shakespeare what school of drama gave birth to his genius. He sports a trenchant and original legal mind, combining the profundity of Socrates, the wit of Alexander Pope and the statesmanship of Abraham Lincoln. He will be a Justice who lives for the ages, an appointment that should be recorded as one of President Bush’s finest hours.

Mr. Roberts is no political partisan. His loyalty is to the Constitution, simpliciter. His votes will be uninfluenced by whether they bring cheer to Republicans or Democrats, conservatives or liberals. As President Theodore Roosevelt voiced consternation over his acclaimed appointee Justice Oliver Wendell Holmes, President George W. Bush will assuredly prove equally dismayed over some votes of Justice Roberts. Presidents are preoccupied with results, not process, failing to recognize the history of liberty is a history of procedural protections and strict adherence to rules of the game.

Unlike Justice Sandra Day O’Connor and several of her colleagues, Judge Roberts believes the Constitution delimits the power of judges every bit as much as it does Congress, the president and the states. Article III confines the Supreme Court to exercising “judicial power,” i.e., the power to interpret the Constitution and laws according to the text and purpose of the Framers. That lodestar does not eliminate all interpretive ambiguities. Whether freedom of speech was intended to include encouragements of suicide bombers, for example, is not self-evident. But text and purpose sharply narrow the range of predictable and legitimate interpretations — the essence of the rule of law within the judicial branch.

Accordingly, nominee John Roberts balks at the proposition Supreme Court Justices, like God in Genesis, are omnipotent over the Constitution, a usurpation achieved through such extraconstitutional blather as “penumbras and emanations” or “evolving standards of decency that mark the progress of a maturing society.” Chief Justice Earl Warren was notorious for asking advocates whether a practice under scrutiny was “fair.” Associate Justice Roberts will confine himself to the less utopian domain of the Constitution, a restraint consistent with the Founding Fathers’ assurance that the federal judiciary would be the “least dangerous branch.”

Limiting the Supreme Court to interpreting rather than improving the Constitution does not mean its architects thought the nation’s birth certificate flawless. They saw and anticipated shortcomings. Thus, Article V provides for amendments by a two-thirds vote of Congress coupled with ratification by three-fourths of the states. The Bill of Rights, a virtual codicil to the Constitution, was passed by the very first Congress. No contemporary believed the first 10 amendments, despite their importance, could have been legitimately incorporated by inventive Supreme Court edicts.

Justice Roberts can be expected to look askance at intellectually flabby Supreme Court precedents that beset abortion, the death penalty, racial preferences, congressional power under the Commerce Clause and section 5 of the Fourteenth Amendment, the establishment clause, campaign contribution and expenditure limitations, and unenumerated rights of privacy. But he should neither be asked by senators nor should he respond to questions about his judicial views on particular issues, a reticence that also characterized exchanges between the White House and Judge Roberts. Justice requires the appearance of justice. That appearance is stained if a Supreme Court nominee has prejudged an issue during confirmation hearings outside the customary adversarial process and with an incentive to abandon sound constitutional viewpoints to propitiate Senate detractors.

In hindsight, nominee Robert H. Bork regretted answering a battery of case-specific questions posed by his Senate interrogators, including the current chairman of the Senate Judiciary Committee, Arlen Specter, Pennsylvania Republican.

The Constitutional Convention rejected a proposal for the Supreme Court to advise on proposed laws before their enactment to avoid skewing the justices’ views on the constitutionality of statutes they recommended or opposed.

Justice Roberts will give statesmanlike deference to Supreme Court precedents to honor settled expectations and to avoid inconstancy in the law. He eschews a Robespierre-like zeal to remake the world. Deference, however, is not slavish obedience. As Justice Louis Brandeis advised, stare decisis should bow to the lessons of experience and superior reasoning, recognizing that trial and error has a proper role in the judicial function. The longevity of a precedent confers no shield against an overruling. The odious “separate but equal” doctrine of Plessy v. Ferguson (1896) was reversed 58 years later in Brown v. Board of Education (1954). The alarming holding in Olmstead v. United States (1928) that conversations are outside the protection of the Fourth Amendment was reversed 39 years later in Katz v. United States (1967).

A delicate balance of prudential considerations is likely to inform Judge Roberts’ inclination to overrule a precedent, including egregiousness of the constitutional error, its tendency to breed additional mischief and the opportunity of the political branches to correct the error by constitutional amendment.

Where that leaves Roe v. Wade (1973) is indeterminate.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has prepared an “Advice & Consent Handbook” on Supreme Court appointments and the judicial filibuster.


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