Redstate

By Gerry Daly Posted in User Blogs — Comments (0) / Email this page » / Leave a comment »

Promoted from the Diaries . . .

Stephen Henderson of Knight Ridder Newspapers looks at a specific quotation from John Roberts in 1997.

The topic was a recent Supreme Court decision on assisted-suicide.

"I think it's important not to have too narrow a view of protecting personal rights," Roberts said on PBS' "The NewsHour with Jim Lehrer." "The right that was protected in the assisted-suicide case was the right of the people through their legislatures to articulate their own views on the policies that should apply in those cases of terminating life, and not to have the court interfering in those policy decisions. That's an important right."

[Read some of the article's analysis of the significance of this quote, and the very important point the article's analysis misses, below the fold.]

"I think the quote highlights a general theme of his, which is to observe the separation of powers and the structural aspects of the Constitution with special care," said Douglas Kmiec, a constitutional law professor and former head of the Department of Justice's Office of Legal Counsel under President Ronald Reagan. He was on the PBS show with Roberts.

"And I think it's important to point out that this approach is not a formula for a conservative court or a liberal court. It's just a formula for a faithfully democratic court," Kmiec said.

Mr. Henderson then gives certain examples to butress the idea, laid out by Mr. Kmiec, that this can lead to results considered conservative or liberal, depending.

If the Supreme Court were to rule guided by such a consistent view of limited federal authority, for example, it might limit Washington's power to enforce civil rights or environmental regulation.

But it also could similarly restrain efforts to enforce federal legislation asserting conservative moral values, such as laws against assisted suicide and medical marijuana.

Of course, what the President had promised was that he would nominate a strict constructionist, who would faithfully interpret the Constitution and not legislate from the bench. This too is an approach that can lead to results that would make conservatives happy, or liberals happy, depending on the case at hand. And it is an approach that is completely square with the philosophy hinted at by Roberts' comment.

It also might frustrate efforts to compel states to adopt a uniform view on gay marriage.

Indeed. However, the article frames this as a result that would frustrate conservatives, when in fact the outcome most conservatives seem to be trying to prevent is having the decisions of some judges in Massachusetts (or any other state) force it on everyone else. The judicial restraint suggested by Roberts' would likely make liberals at least as unhappy as conservatives, if not more so, on that issue.

But that is not the very important point the article misses; I will get there in a moment. To set the stage for it, we have to get to the analysis in the article from a historian.

"If you take Roberts' quote at face value," said court historian David Garrow, "it's really the clearest sign yet that this is like Sandra Day O'Connor or William Rehnquist, and not Antonin Scalia. It's populist democratic and therefore not in line with the way many liberals see the court. But the person who said that is not someone from national right-to-life, either."

Hold that thought, Mr. Garrow. Let's save it for the kicker. We'll get back to you, after smacking around a law professor.

Temple University law professor Craig Green agreed that Roberts' quote was revealing about his views on state authority, but he cautioned against reading too much into it. In the 1997 case, he pointed out, the court approved a Washington state law that banned assisted suicide - so in upholding limits on federal authority in that case, conservatives on the court didn't face the consequence of affirming a policy decision they may have disliked.

Thank you, Mr. Cynic. God forbid someone actually have a judicial approach where they are consistent and not simply rationalizing the results they want. I would suppose that Green thinks Justice Thomas was lying in his Lawrence dissent when he said that he found the law, which he thought the court had no right to strike down, "uncommonly silly," and that if he was a legislator he would "vote against it." Those were just window dressing to blind people to the fact that he really wanted the law, struck down in Lawrence, to remain on the books. Pardon me, Professor Green, but I think if you want to make such an accusation about Roberts' judicial temperment, you should probably back it up with some examples of his rulings that support your insinuation.

But I digress.

Historian Garrow gets the last word in, in Henderson's article.

"The phrasing of it is so atypical, almost original," Garrow said. "I think it's an important indicator of what kind of justice he might be."

I wholeheartedly agree. And I also agree with Mr. Garrow when he says that is not how "someone from national right-to-life" would couch things.

But then again, overturning Roe v. Wade would not guarantee a right-to-life in America. It would merely return the question to the individual states, and their legislatures. And I hope, someday, I will be reading the decision of the court, authored by Justice Roberts, overturning Roe v. Wade, saying "it's important not to have too narrow a view of protecting personal rights... The right that was protected [must be] the right of the people through their legislatures to articulate their own views on the policies that should apply in those cases of terminating life, and not to have the court interfering in those policy decisions. That's an important right."

Addendum: This article has some more fun Roberts' quotations pulled from the document dump:

In this case, Roberts said his superiors at the Justice Department had earlier looked at the issue of court-stripping legislation and decided the Constitution "did not mean what it said."...

Roberts advocated a limited Supreme Court role on controversial issues in the 1980s such as death penalty appeals, according to documents released Tuesday, and flashed impatience with what he referred to as "judicial activism."...

That one will come in handy as Leahy and company try to paint him as itching to be an activist judge.

He was critical, for example, of a system that he said offered convicts several avenues of challenging their sentences in both state and federal courts. The availability of federal court appeals, "particularly for state prisoners, goes far to making a mockery of the entire criminal justice system," Roberts wrote in a Nov. 12, 1981, memorandum.

A July 7, 1982, memo concerned a case involving a demand for a school district to supply a sign language interpreter "for a hearing-impaired child who was an excellent lip reader." The lower courts ruled in favor of the child "in an exercise of judicial activism," Roberts noted. The Supreme Court reversed the ruling, Roberts added with evident satisfaction before taking a swipe at "the activist duo Justices (William) Brennan and (Thurgood) Marshall," who dissented.

And hinting at my point above:

In material evidently prepared for Attorney General William French Smith, Roberts wrote disparagingly in late 1981 of cases in which the courts had established rights not specifically defined in the Constitution.

The case he cited involved a "fundamental right to travel," and related to a residency requirement for welfare recipients.

But Democrats drew attention to the reference to question whether Roberts might also apply the same logic to the right to privacy or the right to an abortion. Neither right is specifically mentioned in the Constitution, but both have been established by the high court in the past 40 years.