- The Washington Times - Monday, September 19, 2005

Judge John Roberts soon will be confirmed as the 17th chief justice of the United States to replace William H. Rehnquist.

Senate Judiciary Committee Democrats Joseph Biden of Delaware, Edward Kennedy of Massachusetts, Charles Schumer of New York and Dianne Feinstein of California are frowning and gnashing. Senate Judiciary Committee Republicans Orrin Hatch of Utah, Jon Kyl of Arizona, Jeff Sessions of Alabama and John Cornyn of Texas are smiling and exulting.

But something is wrong with this picture. The Supreme Court will hop marginally to the political left with Judge Roberts as chief justice. Compared with the late Chief Justice Rehnquist, he is more accommodating to First Amendment rights of free speech and association, Fourth Amendment privacy interests, and the power of Congress to encroach on traditional state prerogatives under the Commerce Clause. Judge Roberts also is less inclined to disturb liberal Supreme Court precedents.

In sum, President Bush’s shifting of Judge Roberts from the liberal seat of Justice Sandra Day O’Connor to Rehnquist’s conservative chair marked a nontrivial ideological victory for Democrats and a doctrinal setback for Republicans.

The two parties reacted oppositely because they had been programmed to expect Judge Roberts’ replacement of Justice O’Connor. That swap would indeed have jeopardized such exotic Democrat interpretive theories as “constitutional penumbras,” “meaning of the universe,” “evolving standards of decency that mark the progress of a maturing society,” and “social alienation.” President Bush, however, jettisoned the Roberts-O’Connor trade that would have justified a conservative Republican motorcade and a liberal Democrat wake. The two parties’ scriptwriters, however, proved deaf to Mr. Bush’s scrimmage-line audible summoning Judge Roberts to replace Rehnquist. Democratic senators errantly insinuated that Judge Roberts for Chief Justice Rehnquist would make the court friendlier for Republicans, and their Republican counterparts fortified that misimpression.

Rehnquist denied any preferred position for freedom of expression. In contrast to Justice Antonin Scalia, he insisted flag burning to protest U.S. government policy was unprotected by the First Amendment. He regularly voted to sustain restrictions on the sexually vulgar or coarse, and congressional initiatives to shield children from indecency. In Austin v. Michigan Chamber of Commerce (1990), Chief Justice Rehnquist voted with liberals and against Justice Scalia to uphold a state statute banning corporate independent expenditures to support or oppose candidates vying for state office — core political speech.

In contrast to Rehnquist, Judge Roberts voiced no open skepticism of precedents repeatedly foiling statutory curbs on child access to indecent materials. In response to a First Amendment question from Sen. Mike Dewine, Ohio Republican, Judge Roberts retorted: “[I]t is important that people keep a basic principle in mind. … And it’s not a provision in the Constitution. It’s not a provision in the law. But it’s a basic American approach. … captured in the expression, you know: ‘It’s a free country.’ And when you’re talking about what people can say, what signs they can put up, what they can do, I think people as a general matter need to appreciate that it’s a free country and it’s a wonderful thing that people can say things in public that you may not agree with, because you, of course, have the same right.”

In search and seizure cases arising under the Fourth Amendment, Rehnquist customarily voted to uphold the government’s encroachment on personal liberty in the name of law enforcement. He endorsed broad police powers to search incident to a stop or arrest. He voted in favor of a good faith exception to the exclusionary rule in United States v. Leon (1984), and a nontechnical conception of evidence needed to obtain a search warrant in Rakas v. Illinois (1978).

Judge Roberts, in comparison, unreluctantly embraced privacy as a centerpiece of the Fourth Amendment, and unequivocally renounced the idea that in wartime the president is above constitutional restraints. He indicated sensitivity to the potential for government overreaching that seemed periodically to escape Rehnquist.

In United States v. Morrison (2000), Rehnquist chided Congress for concocting a concatenation of events under the Commerce Clause to justify a federal damage remedy for violent crimes against women. In holding the Violence Against Women Act beyond the limited powers of Congress, Rehnquist quoted with approval from Justice Benjamin Cardozo: “There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center.”

Judge Roberts responded to Sens. Schumer and Arlen Specter, Pennsylvania Republican, that Congress deserves a “great deal of deference” under the Commerce Clause and Congress could probably ban “noncommercial cloning.”

Rehnquist voted to overrule the abortion precedent of Roe v. Wade, the victim impact statement precedent of Booth v. Maryland, and the military jurisdiction precedent of O’Callahan v. Parker. Although he shied from overruling Miranda v. Arizona in the Dickerson case, Rehnquist generally voiced less caution in reconsidering ill-conceived liberal precedents than did Judge Roberts under the gaze of the Senate Judiciary Committee.

When Roberts is sworn in as chief justice, conservatives will cheer, liberals tremble. And knowing onlookers will be baffled.

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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