Confusing the personal with the judicial
In a week in which Fox News referred to John G. Roberts Jr. as “running” for a seat on the Supreme Court, I suppose it shouldn’t surprise us that the Washington Post likewise cannot distinguish between the political and the judicial.
Perhaps in an effort to calm the nerves of quaking liberals, the Post undertakes to show that Judge Roberts might not be as politically conservative as most assume — “But if he was conservative in the studious, religious, clean-cut sense, it was not clear he was politically conservative” — as though this were relevant to what we can expect from him as a justice on the Nation’s highest court:
“You know, I must have had a thousand lunches with John, and I can’t think of a single thing he’s said that would specify his politics,” says [E. Barrett] Prettyman, [Robert’s close friend and colleague]. “We were all under the impression that he’s a conservative, but he always talked generalities. He’s not the type to lay it all out.”
But if John Roberts is the judicial conservative that his record strongly suggests him to be, then his personal political views, whether liberal or conservative, are irrelevant. For he will not use his power as a Supreme Court justice to conflate his political views with the law. He will not, in other words, use the Constitution or federal statute as a pretext for transcribing his own political preferences into public policy.
Here’s an example of what I mean. You and I may believe that the war on drugs is a colossal waste of money and a infringement on personal choice. Accordingly, we may believe drugs should be legalized. But at least for now, drugs are not legal, and nothing in the text, design or history of the Constitution requires the Government to make them legal. The former is our policy view; the latter is the law. You see the difference, yes? If you can honor that difference while exercising the power of a judge, you’re a judicial conservative. And according to the people who know him, so is John Roberts:
“John was extremely careful and deliberate,” says [Larry] Robbins, now the lead partner of a Washington firm. “He studied every word, because he believed that words had consequences . If he had a political agenda, it escaped my radar.”
[…]
John F. Manning, who worked in the solicitor general’s office and is now a Harvard Law School professor, says that if Roberts had one consistent value, it was deference to political branches. “I think that’s a strong value for him. He doesn’t think the Supreme Court should promiscuously overrule political decisions.”
[…]
Mit Spears, a Roberts colleague in the Reagan administration, says Roberts believes judges should be “dispassionate arbiters of balls and strikes,” as opposed to “bomb-throwers.” “People who think the Supreme Court should lead the way in society are in for a bitter disappointment,” Spears said.
And:
“I don’t really feel like I know his politics,” says H. Christopher Bartolomucci, a Hogan & Hartson partner who has worked closely with Roberts. “My sense is he’s conservative, but he never talked about it. He’s certainly conservative in the sense of respect for the text, caution, adherence to the precedent, deference to the government as opposed to social engineering.”
For all I know, John Roberts is a flaming political liberal, although his long association with Republican governance makes that unlikely. But if he knows the difference between the role of legislator and the role of judge, I don’t care about his politics — and neither should you. Here’s the key question: as a Supreme Court justice, could John Roberts distinguish between what the law is and what he thinks the law should be?
His record and the people who know him say the answer is an emphatic yes.
Damn right. Of course, the problems come in when the law is the generality. Many times people have become upset when a law is deemed unconstitutional, but it is because for one reason or another the law was too broad or lacked specifics, at which point the recommendation is to write it again, and not for the SCOTUS to actually play “fill-in-the-blank.”
You have to remember, the SCOTUS has never really taken it’s power as far as most people believe, but it simply strikes down things that are too broad or unconstituional for one reason or another. The other branches of the government can fix this. It’s not easy, but it’s possible.
A good example is the CDA from years back: http://en.wikipedia.org/wiki/CommunicationsDecencyAct
As far as abortion, imagine if the constitution was amended to say at which point does a fetus become a child and is protected under US Law for murder. Then the courts wouldn’t have to decide.
HOWEVER, since the US Government has done very little on this subject, it’s up to the courts to decide. It’s not a matter of the courts making law, but the rest of the government not making law concerning it. It wouldn’t be easy to pass that amendment through all the channels for an amendment to go, but it would be the best option and I’m sure wouldn’t be something ridiculous.
(I think abortions should be legal, but not encouraged. But hey, if they are illegal, that’s fine too, as long as the mother is protected. There are simply times when it is not possible for a woman to give birth without significant risk to herself, yet there are many conservatives who believe abortion is murder, no matter what, no ifs ands or buts. If it kills the mother, she shouldn’t have gotten pregnant in the first place, somehow, it’s her job to know that she’ll be killed if she gets pregnant. Yeah, real smart. However, I’m sure an amendment would be specific enough, not to please anyone, but to put the whole issue to rest).
Upset about property woes? It’s in the hands of the government now. There have been several interviews saying the laws could be re-written to be compatible with the US constitution and unable to be striken down from the supreme court, an amendment would do it as well.
The fact is, the SCOTUS is an easy place to put blame, but the job of fixing any ruling comes from the rest of the branches. Even if he’s a judicial conservative and rules according to the law, he will have to rule according to the law, even if that means that yes, the government can come and bulldoze your house for a couple of cookies.