Bench Memos

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Roberts on the Role of Judges


It would be tempting just to play defense on the Roberts nomination, and the slew of distortions from the Left would keep one fully occupied. But the affirmative case for Judge Roberts needs to be made over and over, especially since the spotlight on the confirmation process provides a valuable opportunity to try to inform the public understanding of the proper role of the courts.

Roberts’s executive-branch documents show that he has a deep and longstanding appreciation of the proper role of judges in the American constitutional republic. I hope to use a series of posts to highlight his understanding.

Let me begin with Roberts’s rejection of the prevailing liberal myth, claimed to have been established by Marbury v. Madison, that the Supreme Court is, as asserted in 1958 in Cooper v. Aaron, “supreme in the exposition of the law of the Constitution.” Roberts addressed and refuted this myth in his lengthy memorandum making the case for Congress’s power to remove certain classes of cases from the Supreme Court’s jurisdiction:

“It is argued, however, that divesting the Supreme Court of jurisdiction over a particular class of cases would undermine the constitutional role of the Court as the ultimate arbiter of constitutional questions. The Cons[t]itution, however, does not accord such a role to the Court. The authority of the Court to interpret the Constitution derives from the necessity of its doing so in the course of discharging its judicial responsibility to decide those cases and controversies properly presented to it. [Lengthy quotation from Marbury.] If the necessity of interpreting the Constitution is removed, as it would be if the Court were divested of jurisdiction, the basis for the Court’s role as final arbiter of the Constitution is removed.”
It is of course true that Roberts’s memorandum expressly states that it “is prepared from a standpoint of advocacy of congressional power over the Supreme Court’s appellate jurisdiction” and “does not purport to be an objective review of the issue.” But Roberts’s explanation of the Court’s actual role is so clearly correct (and so contrary to conventional wisdom) that it is difficult to imagine that he does not embrace it.

To be sure, the Supreme Court will have the final word in cases that it decides, and in a properly functioning system its judgments and opinions will deserve considerable respect. Moreover, the Supreme Court, as a body, is far more able than the president or Congress to offer coherent and principled analyses of the Constitution (though it obviously does not always display that ability). So what difference does it make, outside the context of legislation to divest the Court of jurisdiction, that the Constitution does not make the Court “supreme” over the other branches in interpreting the Constitution?

I think it makes a great deal of difference. First, the mistaken view that the Supreme Court is the ultimate expositor of the Constitution readily degenerates, in the minds of the justices, to the practical proposition that the Constitution means whatever they say it means. That is a license for lawlessness, a license that the Court has freely exercised in recent years. For example, the insipid New Age assertion (embraced by six current justices, in Planned Parenthood v. Casey or Lawrence v. Texas) that “[a] t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” really means that the Court is claiming the unconstrained power to define for all Americans which particular interests it thinks should be beyond the bounds of citizens to address through legislation.

Second and relatedly, the recognition that the Court is not supreme over the other branches leads readily to the recognition that the Court itself is bound by the Constitution and that erroneous decisions it renders on constitutional questions are themselves unconstitutional acts. This recognition has healthy consequences for how a justice approaches the question of overturning wrong precedent.

By the way, expect the same senators who object to the Court’s supposed failure (in Senator Specter’s words) to “respect Congress’s constitutional role” in enacting legislation to be the strongest to criticize Roberts for respecting Congress’s constitutional role in interpreting the Constitution.


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