Documents from John Roberts’s service in the Reagan administration show him to be a committed proponent of judicial restraint. Roberts’s initial November 1981 draft of the attorney general’s January 1982 article in the ABA Journal reflects his broader outlook. (I’m focusing for now on the initial draft because that is most clearly Roberts’s own work product.)
That draft essay contains virtually the statement on judicial independence that I discussed here. In Roberts’s words: “The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and engaging in policymaking properly committed to the elected branches or the states.” He adds: “By urging courts to observe appropriate self-restraint and avoid intrusions into the domain of the other branches, we will be taking significant steps to secure their independence.” In short, criticism of judicial activism serves the cause of genuine judicial independence.
Roberts then addresses three ways courts can better practice judicial restraint: “observe strictly the requirements of justiciability, avoid particular devices for testing the constitutionality of laws which permit ready intrusion into the domain of the legislature, and exercise restraint in the formulation of equitable decrees.” Let’s focus on the second way. Here’s an extended passage from Roberts’s draft:
“A second means by which courts arrogate to themselves functions reserved to the legislative branch or the states is through so-called ‘fundamental rights’ and ’suspect classes’ analyses, both of which invite broad judicial scrutiny of the essentially legislative task of classification. Federal courts must, of course, exercise their function of determining the constitutionality of enactments when the issue is properly presented in litigation. . . . [But] [c]ourts cannot, under the guise of constitutional review, restrike balances struck by the legislature or substitute their own policy choices for those of elected officials.
“Two devices which invite courts to do just that are ‘fundamental rights’ and ’suspect classes’ review. It is of course difficult to criticize ‘fundamental rights’ in the abstract. All of us, for example, may heartily endorse a ‘right to privacy’. That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label ‘fundamental’ and then resort to is as, in the words of one of Justice Black’s dissents [in Griswold v. Connecticut], ‘a loose, flexible, uncontrolled standard for holding laws unconstitutional.’ . . .
“Analysis based on ’suspect classes’ presents many of the same problems. Classifications based on race are suspect and do merit careful scrutiny, in light of the historic purpose of the Fourteenth Amendment. Extension of heightened scrutiny to other ‘insular and discrete’ minorities, however, represents an unjustified intrusion into legislative affairs.”
Justice Scalia and Justice Thomas couldn’t have said it any better. And although these are statements from two dozen years ago, it is my experience that once someone attains this clarity of understanding, he will not thereafter lose it.