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Roberts’s Restraint
Policy preferences don't dictate judicial outcomes.


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Peter Kirsanow

The NAACP’s Washington bureau released a statement last week contending that recently revealed John Roberts documents display a longstanding hostility toward NAACP civil-rights priorities. The statement maintains that the documents show several “disturbing instances in which Judge Roberts’ legal philosophy and judicial temperament appeared to be detrimental to the civil rights, civil liberties and educational equity issues supported by the NAACP, including race and gender discrimination (sic) and affirmative action.”

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The statement is incorrect. (Even beyond the statement’s inadvertence that the NAACP supports race and gender discrimination.) A search of Roberts’s record reveals nothing in his legal philosophy or temperament detrimental to civil rights, civil liberties, or “educational equity” issues. Nor has Roberts demonstrated hostility toward race- and gender-discrimination laws or even affirmative action as lawfully constituted. (Whether his legal philosophy cheers the NAACP, though, may be another matter.)

The NAACP statement is emblematic, however, of a tendency among Roberts’s opponents to assert that positions taken by Roberts as a counsel or advocate betray policy preferences that will be imported into his judicial decisions. The opponents presume that Roberts will act as a legislator, not as a judge engaged in interpreting, rather than making, the law.

Given the behavior of some on the bench over the last 40 years, the concerns of Roberts’s opponents isn’t necessarily empirically unreasonable. The substitution of policy preference for legal interpretation seems to occur with increasing frequency. But it’s the precise opposite of Roberts’ judicial approach. Roberts has repeatedly declared his judicial approach to be one in which judges don’t “look to their own personal views or preferences in deciding cases before them.” Yet perhaps the best evidence that Roberts won’t substitute ideology for interpretation can be found in the manner in which he handled a similar set of affirmative-action issues–first as an advocate and then as a judge.

Two Cases, Clear Picture

Roberts, one of the premier Supreme Court litigators of the last two decades, has been in the unusual position of both advocating against racial preferences in government contracting (Adarand Constructors v. Pena) and later deciding a case involving racial preferences in government licensing (Sioux Valley Rural Television, Inc. v. FCC). If Roberts’s position as an advocate is presumed to be a proxy for his own policy preferences, and further, if (as Roberts’ opponents seem to believe) such policy preferences will affect Roberts’s jurisprudence, then one would expect that Roberts’s arguments in Adarand would be replicated in his Sioux Valley rationale.

In Adarand Roberts represented a construction-industry trade association as an amicus challenging the federal government’s practice of awarding general contractors on federal projects a financial incentive to hire subcontractors who were “socially and economically disadvantaged.” The government’s presumption was that “socially and economically disadvantaged meant small minority businesses.

Roberts argued that racial preferences in the award of construction contracts by the federal government should be subject to strict scrutiny under the equal-protection component of the due-process clause of the Fifth Amendment. (The Court had previously held in City of Richmond v. J.A. Croson Co. that strict scrutiny applied to racial preferences in the award of state contracts. Strict scrutiny has two prongs: The classification must have a compelling governmental interest and be narrowly tailored to serve that interest.) Roberts further argued that the only governmental interest that would satisfy strict scrutiny is the need to remedy specifically identified instances of past discrimination. Roberts also argued that once the objective of remedying specifically identified past discrimination is established the narrow tailoring prong of strict scrutiny requires that the government (1) carefully consider race-neutral alternatives; (2) link any numerical objectives to the availability of qualified minority firms in the relevant market; (3) must establish durational limits; and (4) accord preferences only to those toward whom past discrimination has been proven. The “socially and economically disadvantaged” /small minority business preference simply didn’t pass strict scrutiny.

The Court held that all racial classifications, whether created by federal, state, or local governmental actors, are subject to strict scrutiny. The Court remanded the case for further consideration to address, among other things, the question of narrow tailoring.

In Sioux Valley a coalition of FCC licensees challenged the FCC’s restructuring of certain preferences awarded to bidders on FCC broadcast licenses, contending that such restructuring demonstrated an unconstitutional motive to perpetuate race and gender based preferences.

Prior to Adarand the FCC had provided a 25-percent bidding credit for businesses owned by women and minorities. The effect of the bidding credit was to reduce by 25 percent the amount a winning bidder owed the FCC for a license. The FCC also provided an advantage to small business bidders by permitting them to make a 20-percent down payment on the bid with the balance paid out over five years. Small businesses owned by women or minorities could take advantage of both the minority/female bidding preference and the installment payment plan.

After Adarand the FCC revoked the minority/women bidding credit but, rather than eliminating the credit entirely, extended it to all winning small business bidders. In doing so, the FCC noted that such revocation wouldn’t harm the minority and female businesses that had previously received the credit since all such businesses qualified for and would now receive the small business credit.

The petitioners in Sioux Valley contended that while the new credit was facially neutral, it was impermissibly motivated by a racial purpose or object. The petitioners noted that in implementing the new race-neutral policy, the FCC had explicitly stated that the policy wouldn’t negatively affect the recipients of the revoked minority/female bidding credit because all of them also qualified as small businesses.

Roberts wrote the majority opinion for the D.C. Circuit Court of Appeals denying the petitioners’ challenge. Roberts stated that simply because the FCC noted that the rule change wouldn’t harm the minority/female businesses that had previously gotten the credit doesn’t evince discriminatory intent.

No Policy Advocate on the Bench

If, as Roberts’s opponents contend, he will insert the policy preferences purportedly contained in his advocacy into his judicial opinions, then one would reasonably expect that Roberts would’ve struck down the racially neutral FCC rule change, since such change surgically and conveniently preserved bidding preferences for a subset of small businesses, all of which were minority/female businesses. After all, as an advocate in Adarand Roberts had challenged preferences that were directed at “socio-economically disadvantaged individuals,” the relevant and convenient subset of which consisted of minority owned subcontractors.

Roberts declined to do so, confounding the expectations of those who contend that a judge’s policy preference (as supposedly evinced by his advocacy) dictates judicial outcome. Indeed, Roberts could’ve joined in the result of Sioux Valley yet repeat his advocacy position in Adarand by writing a separate concurring opinion. Instead, he deferred to the agency’s action.

The preferences in Adarand and Sioux Valley aren’t strictly apples to apples (but they’re at least McIntosh to Golden Delicious). Nonetheless, it’s apparent that Roberts was presented with an opportunity to extend his Adarand argument/purported policy preference to his decision in Sioux Valley. He didn’t.

Roberts’s judicial restraint may be an astonishing concept to some of his opponents. But it’s one of the defining characteristics of Roberts as a judge. Roberts’s restraint runs counter to the assertion that “his legal philosophy and judicial temperament appear to be detrimental to civil rights, civil liberties, etc.” If anything, his legal philosophy and judicial temperament are the best defenses against erosions to civil rights and liberties. A faithful and disciplined interpretation of the law, not judicial legislation, is a more reliable safeguard of our civil rights and liberties.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights and an attorney in Cleveland, Ohio. These comments do not necessarily reflect the position of the commission.



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