Over in The Corner, Ramesh Ponnuru has quoted a sentence he considers mildly alarming from Judge Roberts’ 2003 confirmation testimony: “I don’t necessarily think that it’s the best approach to have an all-encompassing philosophy” of judging. I actually don’t find this particularly alarming, because I take it to be a knock against “theory” or “theorizing.” There are two ways to eschew “theories of judging.” One is the way chosen by Sandra Day O’Connor, sometimes flatteringly called pragmatism, otherwise known as incoherence. The other way is to devote oneself utterly to discerning what theory the Constitution has of itself. As Joseph Story wisely wrote in his Commentaries in 1833, while simultaneously serving on the Supreme Court and teaching at Roberts’ alma mater:
“Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research. The are instruments of a practical nature . . . Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the constitution a word used in some sense, which falls in with their favorite theory of interpreting it, have made that the standard, by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning, when it seemed too large for their purposes, and extending it, when it seemed too short.”
If Roberts approaches the Constitution in the “anti-theoretical” spirit of Story–which was decidedly not that of O’Connor–that will be good enough for me.