In addition to the ABA Journal draft, another magazine article that John Roberts drafted for the attorney general displays his deep and longstanding commitment to principles of judicial restraint. This draft, from February 1982, discusses the sorry history of so-called substantive due process, from the Dred Scott case through the Lochner era. The “difficulty” with those cases, Roberts soundly explained,
“arose from the fact that the Court took it upon itself to form national policy under the guise of the guarantee of ‘due process,’ rather than deferring to the legislature on the broad policy questions at issue. Recent years have witnessed a revival of an approach to judicial review reminiscent of that embodied in Lochner and Dred Scott. As in those decisions so too today phrases such as ‘due process’ and ‘equal protection’ are held by judges to include policy choices which often block the considered judgment of those constitutionally empowered to make or implement policy decisions.”
How, Roberts’s draft asks, should judges deal with the perplexing challenge of applying these phrases to specific cases? His answer is a classic statement of principles of judicial restraint:
“The intent of the Framers as revealed in the debates on the Council of Revision and the historic lessons of Dred Scott and Lochner require that Congress and the states be given the widest possible scope for policy decisions, and that courts intervene under the potent yet indeterminate bases of due process or equal protection only when clearly necessary. The basic reasons for avoiding judicial policymaking are fairly clear.… Judicial policymaking is inconsistent with our democratic heritage … [and] is inevitably inadequate and imperfect.”
Roberts explains that the view supportive of judicial policymaking “ignores the conscious decision of the Framers that judges not have a general policy role” and “assigns judges an impossible task.” As in his ABA Journal draft, he specifically criticizes “fundamental rights” and “suspect classes” review as “judicially manufactured constructs” that are “quintessentially legislative” in nature. “The various ‘fundamental rights’ which modern courts have enshrined are no more discernable from the words of the Constitution than the ‘liberty of contract’ which was zealously protected by courts in the Lochner era.” Such “judicial policymaking” is “contrary to the constitutional role of the courts.”
President Bush promised to appoint justices who will interpret the law and not legislate from the bench. Judge Roberts clearly understands the proper role of a judge. All Americans who understand what it means to be a citizen should embrace his understanding.