This is going to turn us all into constitutional lawyers.
History Lesson
In Re Judge Roberts: Question
Of 'Originalism' Looms Large
His Record Shows Affinity
To Scalia's Strict Doctrine
But Also More Flexibility
Law-and-Order Conservative
By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
July 21, 2005; Page A1
WASHINGTON – When George W. Bush ran for president in 2000, he said his favorite Supreme Court justices were Antonin Scalia and Clarence Thomas. Those jurists argue that many modern legal precedents -- including the 1973 Roe v. Wade decision that recognized abortion rights -- improperly disregard the original intent of the Constitution's authors.
The big question now is whether Mr. Bush's first pick for the high court, John G. Roberts Jr., fits that mold. His record and personal history suggest that he leans in the same direction. What is uncertain is how far. Much of the confirmation debate in coming weeks will focus on trying to find an answer.
[John Roberts]
Unlike Justice Scalia -- and some of the other candidates the White House considered as replacements for Justice Sandra Day O'Connor -- Judge Roberts is not a leader of the movement known as originalism. He has held influential posts in the Reagan and George H.W. Bush administrations where he helped craft government legal arguments on a slew of issues, including a brief that contended that Roe should be overturned.
But when Republicans were out of power, Judge Roberts chose the pragmatic world of corporate law, rather than pushing a legal ideology in a university or think-tank. In 2003, at the Senate confirmation hearing for his current seat on the federal appeals court in Washington, he brushed aside attempts to label him with a specific school of constitutional thought. "I don't necessarily think that it's the best approach to have an all-encompassing philosophy," he said.
Judge Roberts has spent much of his professional life working around advocates of originalism, and he is skilled at deploying arguments invoking the intent of the Constitution's framers. As principal deputy solicitor general under the first President Bush, he helped write a brief defending prayer at public-school graduations. "We looked at some of the ceremonial invocations that went back as far as George Washington," said John McGinnis, a Justice Department colleague of Judge Roberts who is now a law professor at Northwestern University. "We tried to give some of the original understanding life." Justice Scalia made a similar argument in a recent case defending public displays of the Ten Commandments.
But all savvy attorneys and judges rely to some degree on original intent when they think it supports their position, and there is evidence in his legal work that Judge Roberts might turn out to be a more practical conservative in the mold of Chief Justice William Rehnquist, for whom he clerked.
[Poll results]
In the noisy clash between activists on the left and right, the debate over the Supreme Court centers around bumper-sticker issues like abortion and the environment. But there is a deeper and more complex argument that has been raging for years among legal scholars that the Roberts nomination now brings to center stage: whether constitutional provisions should be interpreted in light of "the evolving standards of decency that mark the progress of a maturing society," as the late Chief Justice Earl Warren wrote in a 1958 opinion on punishing military deserters.
Under the living-Constitution banner, the Supreme Court has in recent decades concluded that Americans have "privacy rights," even though the document doesn't explicitly say so. The court derived from those rights the Roe decision on abortion, as well as other rulings ending government restrictions on contraception and, more recently, homosexual sodomy. The Warren Court and its followers used evolving interpretations to limit libel suits by public figures and curb execution of juveniles and the mentally retarded.
Those decisions triggered a backlash among conservatives. Four decades ago, Richard Nixon gave voice to their frustration, pledging to remake the high court with "strict constructionists." His Republican successors echoed that vow, sometimes succeeding in placing justices who have loyally followed that rule -- such as Justices Scalia and Thomas -- but sometimes failing, as with Mr. Reagan's appointment of Justice O'Connor or the first President Bush's choice of David Souter. Some conservatives have had great hope that the younger Mr. Bush would amplify the voice of originalism on the Supreme Court.
For that goal, Judge Roberts is the perfect pick -- according to Edwin Meese III. As President Reagan's attorney general, Mr. Meese helped popularize originalism, especially in a widely reported 1985 speech to the American Bar Association. In recent months, he has been advising social conservatives as they have tried to influence the White House on filling any high-court vacancies.
[Edwin Meese III]
"Everything he has done has been consistent with" originalism, says Mr. Meese, who worked with Judge Roberts in the Reagan White House. "The president is convinced that he is a constitutionalist in the same way that Scalia and Thomas are," Mr. Meese adds.
But Shannen Coffin, a lawyer who worked with Judge Roberts in the Justice Department of the elder Mr. Bush's administration, cautions that "originalism has many faces." While he expects that Judge Roberts "would look to the meaning of the text of the Constitution first," he couldn't predict how closely the nominee would resemble Justices Scalia or Thomas.
Prof. McGinnis says that much of Judge Roberts's approach can be understood as "generational" as well as philosophical. In recent years, "there's been a lot of interest on all sides" of legal scholarship -- liberal and conservative alike -- in putting "the text under its original understanding at the center of constitutional law."
Originalism's most determined adherents insist that it can be used to reach both liberal and conservative ends. Justice Scalia likes to note in speeches that he has found laws banning flag-burning unconstitutional, much as he disapproved personally of the conduct. Justice Thomas argued in an opinion just this past term that the First Amendment might not prevent states from establishing their own official religions.
Some observers say that rather than being a true originalist, Judge Roberts more resembles a traditional law-and-order conservative -- indeed, that he comes across much like Chief Justice Rehnquist, for whom Judge Roberts clerked in 1980-1981.
The chief justice has applied different methods of constitutional interpretation to reach results that in general favor prosecutors over criminal defendants and limit federal regulatory authority over states.
When Judge Roberts clerked for him, then-Justice Rehnquist issued opinions that have echoed a generation later in Judge Roberts's rulings on the appeals court in Washington, says Supreme Court scholar Peter Irons, a professor emeritus at the University of California, San Diego.
Fourth Amendment
During Judge Roberts's clerkship, Justice Rehnquist advocated a narrow view of the Fourth Amendment protection against "unreasonable" search and seizure, suggesting that the court overturn the so-called exclusionary rule it had created to bar prosecutors from using evidence obtained illegally by the police. Judge Roberts, too, has rejected Fourth Amendment-based claims, in one case upholding the arrest of a 12-year-old girl for eating a French fry in a subway station. In another case, he turned away an objection to a police officer's search of a car trunk without "probable cause" to suspect a crime.
In another 1980 case, Justice Rehnquist upheld draft registration of men only, rejecting a Fifth Amendment claim that a single-sex conscription plan violated the Constitution's guarantee of "equal protection." Last week, Judge Roberts joined a unanimous three-judge panel that found that so-called enemy combatants could be prosecuted before military commissions without the protection of constitutional due-process rights. With more military and terrorism-related cases expected at the high court, Prof. Irons says it's likely that Judge Roberts "will follow Rehnquist in probably total deference to executive power."
It is unclear whether as a law clerk Judge Roberts contributed to those specific Rehnquist opinions. But some legal observers predict that as a justice, Judge Roberts would follow his old mentor's lead, rather than that of the more doctrinaire originalists such as Justices Scalia and Thomas.
In a 1999 interview on National Public Radio, Judge Roberts suggested that originalism was his starting point. Looking at an issue "the way it was in 1789 is not a bad [approach] when you're talking about construing the Constitution," he said.
That comment prompted questions at his 2003 confirmation hearing for the appeals court. Sen. Patrick Leahy, a Vermont Democrat, noted that "the Constitution in 1789 did not have the Bill of Rights," which was adopted two years later and that other compromises struck in the 18th century allowed slavery and "limited state power to make or enforce laws to deny equal protection to people. So the originalist's concept can't be an exact one, can it?"
Varying Approaches
Judge Roberts took pains to separate himself from a rigid approach and suggested that all judges were originalists to some extent. "I think we are all literal textualists when it comes to a provision in the Constitution that says it takes a two-thirds vote to do something," Judge Roberts said. "On the other hand, there are certain areas where literalism along those lines obviously doesn't work," he said. "I think different approaches are appropriate in different types of constitutional provisions." He cited the broadly worded Fourth Amendment as an area where "the text is only going to get you so far."
[Roberts positions]
Keith Whittington, a visiting professor at the University of Texas law school and author of books on constitutional interpretation, says, "Like most conservatives, he's probably going to be sympathetic to originalism and use it when it seems useful. But if you read his opinions, there isn't a big trace of it."
Prof. Whittington notes that often there are different ways to reach the same result. In opinions conservatives have applauded limiting congressional power under the Constitution's Commerce Clause, Chief Justice Rehnquist has often cited prior Supreme Court precedents to buttress his conclusion. "By contrast, Thomas is very happy in the Commerce Clause cases to jump directly to original intent," Prof. Whittington says.
Mr. Whittington, who considers himself an originalist, says that flexibility may make Judge Roberts a more effective conservative leader on the court. A rigid approach "makes it more difficult to cobble together five votes" for a majority, he points out. "Not every justice has to have a strong philosophical bent to achieve what a conservative administration wants to accomplish on the court," he says.
In the public-relations war touched off by the Tuesday-night nomination announcement, supporters of President Bush issued statements trying to minimize Judge Roberts's originalist tendencies. The goal: to make him more palatable to a broader audience. Talking points distributed by the pro-Bush Committee for Justice said that liberals would attack the nominee as being "in the mold of Scalia and Thomas." To rebut that argument, the group highlighted a 2002 property-rights case Judge Roberts won in the Supreme Court. Justices Scalia and Thomas dissented to vote against his client.
Winning Arguments
As a litigator, Judge Roberts focused on constructing arguments that would win. In his brief tenure on the appeals court, his primary duty was applying settled precedent. But should he be confirmed as a Supreme Court justice, he will have the authority to follow or overrule prior cases.
The court's next term is already loaded with disputes that touch on core rights. One case concerns the First Amendment rights of public employees; another, whether states have immunity from lawsuits. A third involves the right of colleges to exclude military recruiters while receiving federal aid. Yet another case on the docket involves a central Warren Court precedent derided by originalists: the 1966 opinion that created the famous Miranda warnings for criminal suspects. |
