Bench Memos

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Re: What Is “Judicial Activism”?


It may be foolhardy of me to take on the tag team of Robert George and Gerry Bradley, but I can only go halfway with their account of what constitutes “judicial activism.” I have elsewhere defined it simply–perhaps they would say too simply–as the “energetic extension of judicial power without legal or constitutional warrant.” Hence it would never–I’ll repeat that, never–be “judicial activism” for a court to refrain from striking down a statute as unconstitutional. If the law is actually unconstitutional, and it is within the proper scope of federal judicial power to say so with conclusive effect, then we would say that not striking down the law is wrong–that it represents a wrongheaded application of judicial restraint–but how could we ever say that the non-use of judicial power is “judicial activism”?

But this is just what George and Bradley do say, citing a judge “sustaining campaign-finance laws that plainly restrict political speech of the sort protected by the First Amendment” as one who has committed judicial activism. Let us assume that campaign finance laws violate the First Amendment, and that it is the business of the Supreme Court to correct the Congress in these matters. I assume neither of these things, but let’s say so. We could then slam the noninterventionism of the judge who likes these sorts of laws for, say, unwarranted judicial “passivism,” but hardly “judicial activism.”

The first thing we want to know about any constitutional decision is, was it rightly decided? The second is, was it reasoned rightly? (Sometimes you get the first without the second, as in the main opinion in Bush v. Gore.) But when we see a wrongly decided case, or a rightly decided case reasoned badly, then we still don’t necessarily see “judicial activism,” unless the wrongly decided case or badly reasoned opinion resulted in the unwarranted intervention of judicial power to prevent democratic decision-making.

Another way to put this is that our judgment of what judges do should not be binary–that one side or the other in every divided constitutional decision is being “activist,” which is implied by the George-Bradley argument. Sometimes neither side will be activist, if one side wishes properly to strike down a law and the other side improperly wishes not to. But whenever that happens, and a law is wrongly upheld, there is still democratic redress available for those who believe the Constitution was violated. It’s done by winning elections and repealing laws.

Now I’ll really step in it. Every current member of the Supreme Court is a serial offender against the proper limits on judicial power, and that includes Scalia and Thomas, who are most certainly “judicial activists” when it comes to the commerce power, state sovereign immunity, and a handful of other issues on which they wish to use judicial power more energetically than the Constitution can justify.

Now I’ll duck and cover.

Roberts “Well-Qualified”


As if there were any doubt, the ABA has rated Judge John Roberts “well-qualified” to serve on the U.S. Supreme Court. AP story here.


Roberts “Mayberry-Like” Background


He’s not a pro-clinic-bomber so he’s a racist? That might be what AP is getting at here

Turley vs. Durbin


Some three weeks ago, law professor Jonathan Turley breathlessly reported Senator Durbin’s account of a private meeting between Durbin and Judge Roberts in which Durbin supposedly flustered Roberts by asking “what he would do if the law required a ruling that his church considers immoral.” Contrary to Turley’s expectation that Roberts’s supposed answer—that he would recuse himself—would dramatically transform the whole confirmation process, it has instead led only to a petty, nasty dispute between Turley and Durbin. Stephen Spruiell explains here that it appears that Durbin tried to use Turley to float some disinformation about Roberts and then lied about it.

Spruiell thinks Durbin’s disinformation was designed to displease conservatives. Wendy Long makes a more compelling case that it was designed to appeal to anti-Catholic bigotry.

What is “Judicial Activism”?


Liberals are already claiming that conservative complaints about “judicial activism” are a sham. These claims will increase and intensify as the Roberts hearings draw near. We think that the liberals’ claim rests upon a mistaken idea of what judicial activism is.

Conservatives do say that they don’t want more “judicial activists” on the bench. President Bush has said so himself. The president also says that his kind of justice is Scalia or Thomas, neither a “judicial activist.” Some liberals say “Phooey!” They say that Scalia and Thomas are activists. Why? Because, they say, Scalia and Thomas have voted to strike down laws more often than their assertedly “activist” liberal colleagues.

We have undertaken no survey of justices and their votes to strike down laws. We do not deny the validity of the numbers advanced by liberal critics of the conservatives’ “no-activists” campaign. On the other hand, we don’t concede the numbers. Our point is about a definition: What counts as “judicial activism”?

Whether a judge is a judicial activist doesn’t depend on what liberals say it depends upon: whether (or how often) a judge votes to overturn laws or to sustain them. It depends on whether he resolves cases (one way or the other) on the basis of extra-constitutional norms, principles, tests, or standards. It is a question of where the rule governing decision comes from. If a judge is striking down laws based on “rights” he has allegedly discovered in “penumbras formed by emanations”or in the “liberty clause” of the Fourteenth Amendment, he’s a judicial activist. He is, without constitutional warrant, substituting his personal moral or political judgments for those of the elected representatives of the people, or of the people themselves. If the judge is sustaining campaign-finance laws that plainly restrict political speech of the sort protected by the First Amendment because, let us suppose, he thinks the laws make the political system “fairer” or “more rational,” he is also practicing judicial activism. He is being guided, not by the Constitution, but by his own predilections.

By contrast, a judge who strikes down unconstitutional campaign-finance laws is not practicing judicial activism. He is giving effect to constitutional guarantees; he is not legislating from the bench. He is not making law, save in the inevitable sense in which judges applying norms supplied by other authoritative sources (the people, the legislature) to the facts always make law–interstitially, incrementally.


Hearing Details


From Specter and Leahy today:

Dear Colleagues:

In order to give advance notice so that you can make your travel plans, the Judiciary Committee hearings on the nomination of Judge John G. Roberts, Jr. for the Supreme Court will begin on Tuesday, September 6th, at 1:30 P.M., in the Caucus Room in 325 Russell. At that time, we will proceed with ten minute opening statements by Committee members to be followed by the oath to be taken by Judge Roberts and his opening statement.

On Wednesday, September 7th, the Committee will reconvene at 9:30 AM in Room 216 of the Hart Senate Office Building for the opening round of questions, which will be thirty minutes in duration. The second round of questioning will be twenty minutes in length, and the duration of such subsequent rounds as are desired will be determined as necessary. The balance of the hearings will be held in Hart 216, except for the closed session, which will take place in our own Committee hearing room.

We look forward to seeing you on September 6th.

Tracking the Left


Every few days, Committee for Justice issues a “threat matrix” document, chronicling the Left’s evolving attack strategy against John Roberts. The latest version is here. Also, for more judicial information, check out CFJ’s blog and John Roberts’s page.

Memo to Former White House Colleagues


A former White House staffer in this administration offers this strategic analysis:

The Left is actively planning a vicious character and ideological assault on Judge Roberts. It is keeping most of its powder dry through August when the American public and political establishment are both largely on vacation. The Bush Administration and its allies need to understand that the real target of the coming assault is not merely Roberts but the Reagan legacy, which the Left wants to recharacterize and relitigate. This is a fight conservatives should welcome and can win, but one that can be won only by reassembling the Reagan coalition and fighting on Reagan’s high-minded and openly ideological terms. Here’s hoping Ed Gillespie and the White House team will study the playbooks of the 80’s and bring all of the conservative movement’s resources to bear for the battle ahead.

The Administration must set forth and defend a high level, positive vision of the Reagan legal legacy that Roberts helped establish. Nothing typifies Ronald Reagan more than the images of “Morning in America,” the famous 1984 campaign ad. The Administration must demonstrate why the legal work Roberts was engaged in made Morning in America that much brighter. What Reagan did in the area of civil rights, for instance, was not just defeat quotas and busing–he brought us closer to the noble ideal of a colorblind society. He didn’t just block liberal judges from perverting our criminal justice system, he made our communities safer places to live. And he didn’t just promote prayer in schools, he helped remind us all that America is still One Nation Under God. If Roberts is seen as an architect of that glorious legacy he will be confirmed, and by a large margin. If he is instead falsely depicted as a “handmaiden of the Radical Right” bent on undoing years of “progress” for women, minorities and the less fortunate, he will be defeated or win only by the exercise of brute political force.

That is the challenge, and I desperately hope that conservatives are up for it.

Roberts and Recusal


According to this article, liberal law professor Stephen Gillers claims that Judge Roberts should have recused himself from further participation in the case of Hamdan v. Rumsfeld once the Administration began interviewing him for a possible Supreme Court nomination. The argument, which Gillers says he is developing into an article, apparently runs like this: (1) Section 455(a) of title 28 requires that a judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (2) The Hamdan case, which presented a challenge to the administration’s use of military commissions to try enemy combatants, was very important to the administration. (3) It would be reasonable to think that Judge Roberts’s desire to advance his candidacy for the Supreme Court might make him partial to the administration’s position in Hamdan.

Admittedly, the language of section 455(a) is so open-ended that, once you get beyond its core, it is not easy to discern from its text alone the line between what it prohibits and what it doesn’t. (By contrast, section 455(b)(3) and the core of section 455(a)–which I discussed extensively in connection with Attorney General Gonzales’s potential recusal obligations–are much more clear.) In advice that other ethics gurus questioned, Gillers himself advised Justice Breyer last year that Breyer could take part in a case presenting the question whether the sentencing guidelines are constitutional, notwithstanding Breyer’s own extensive involvement in creating the guidelines.

The line that Gillers proposes here seems highly dubious. Consider:

1. Even before he interviewed for a possible Supreme Court nomination, Roberts had ample reason to believe that he was on the administration’s short list. Why should the fact of an interview change his recusal obligations? I also note that there was not even an announced vacancy at the time of his initial interview, though I would not see that fact as decisive.

2. Even before he interviewed, Roberts, like dozens of other federal judges, could be said to have had an interest in advancing his candidacy for the Supreme Court. Indeed, every judge has all sorts of extraneous incentives (praise from media and academia, for example). We reasonably expect judges to be able to act impartially, notwithstanding the objective existence of these incentives. Why should the fact of an interview decisively change the calculus?

3. Roberts undoubtedly has lots of cases in which the United States has a significant interest. How would Gillers draw the line between significant and insignificant cases?

4. If the White House invites, say, Justice Ginsburg in to interview for the position of Chief Justice, would Gillers maintain that she has to recuse herself from all cases of significant interest to the Administration? If so, please set up that interview.

The same article has law professor Deborah Rhode saying that Roberts’s non-recusal doesn’t “reflect best practices” but also probably doesn’t violate section 455(a). But if Roberts wasn’t required to recuse, then he was obligated not to recuse. It makes no sense to import corporate-management jargon like “best practices” into recusal decisions.

RE: Marketplace Correction


Yesterday Marketplace ran the following correction :

Also, a commentary by Robert Reich last week incorrectly characterized a dissenting opinion by Supreme Court nominee John Roberts in a case involving the federal government and the environment. Judge Roberts did not say the federal government lacked the power to set national environmental rules limiting real estate development.
However, I cannot find a correction on Robert Reich’s website where the commentary also appears.

Marketplace Correction


I’ve just been informed that Marketplace ran a correction about their Roberts commentary on the air yesterday. I’ll post a link or the text when I get it.

RE: Comparable Worth


Apparently Daily Kos realizes this one won’t be their much-sought-after “silver bullet” to kill the Roberts nomination.

Marketplace Again?


So they hit Roberts unfairly again? No surprise. They’ve yet to issue a correction for their commentary that falsely characterized Robert’s Rancho Viejo opinion. (Ditto for the commentary’s author, Robert Reich. See here.) So, for all its faults, the NYTimes is more accountable than taxpayer-funded radio programming. Nice.

NPR: Comparably Worthless


NPR Marketplace had an insipid segment yesterday on what John Roberts said about comparable worth in 1984. I was interviewed for the segment and therefore was interested in how it turned out. It provides, I think, a textbook example of the everyday falsehoods and distortions of the Left. Consider:

1. Here’s how the NPR reporter, Amy Scott, introduces the concept of comparable worth: “In the early 1980s an idea caught on: What if you paid laundry workers, who tended to be women, as much as truck drivers, who tended to be men? The wage gap between male- and female-dominated jobs would shrink.”

With this false portrayal of comparable worth (which even Justice Brennan labeled a “controversial concept”) as popular, Scott slides the listener past the obvious questions that any sentient person would have. Such as (to name just a few): On what basis can the job of a truck driver and the job of a laundry worker be said to have comparable “worth”? What does the concept of job “worth” even mean, and how is it to be determined? Wouldn’t a system of comparable worth require that central planners set economy-wide job compensation according to their own subjective evaluations of relative worth? What obstacles, if any, are there to women becoming truck drivers? And if they’re becoming laundry workers rather than truck drivers, might there be sensible reasons for their choices?

2. The entire segment conflates the fundamental distinction that Roberts drew between equal-pay laws (“equal pay for equal work”) and comparable worth. Marcia Greenberger of the “nonprofit” National Women’s Law Center makes this attack on Roberts: “His description of what the problems were that women were facing completely eliminated the whole notion of sex discrimination as having any role to play in the lower pay that women receive.” But Roberts’s clear point was that federal law properly gave victims of sex discrimination relief when they were denied access to a job for which they were qualified or when they received less pay. It is true that he did not embrace Greenberger’s ideological assumption that the “wage gap” between laundry workers and truck drivers is necessarily a result of sex discrimination. But why should he have done so?

3. Here’s how Scott introduces my comments: “Ed Whelan is president of the conservative Ethics and Public Policy Center. He says Roberts had no objection to workplace equality. He simply disagreed with the idea that judges and bureaucrats should enforce it.”

The last sentence is a ludicrous misstatement of my explanation of Roberts’s distinction between equal-pay laws (which certainly require judicial and administrative enforcement) and comparable worth. And it distracts the listener from my actual explanation that followed.

Note, by the way, that Scott identifies the National Women’s Law Center as “nonprofit” rather than “liberal,” but she gives the Ethics and Public Policy Center—which is also nonprofit, as I will personally attest if you choose to send us a tax-deductible contribution—the “conservative” label.

4. Scott closes with Senator Snowe’s statement that she hoped that Roberts “now possessed an openness on wage discrimination”—as though he had ever opposed equal pay.

In retrospect, it is obvious to me that Scott and Greenberger had already orchestrated the story line when Scott called me to give the appearance of balance. My efforts to persuade her that her premises were all wrong were futile.



It was only a matter of time before Senator Leahy began attacking Roberts, even if only to lay the predicate for later opposition. Leahy does not want to appear partisan or ideological, but there’s no question Leahy will try and stop Roberts if he thinks it’s a possibility.

I’m Surprised There Hasn’t Been a WNBA Protest Yet


In John Roberts’s America


From a statement released by Senator Leahy yesterday:

Those papers that we have received paint a picture of John Roberts as an eager and aggressive advocate of policies that are deeply tinged with the ideology of the far right wing of his party then, and now. In influential White House and Department of Justice positions, John Roberts expressed views that were among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women’s rights, privacy, and access to justice.

He advocated overturning a Nixon-era Executive Order that assures non-discrimination in federal contracting; he mocked the efforts of women legislators to find a way to remedy the effects of sex discrimination; he wrote of a “so-called right to privacy” and “so-called fundamental rights;” he opposed efforts to make the voting rights act more effective; and he championed efforts to strip courts of their ability to grant remedies to civil rights plaintiffs, taking a position more extreme than conservative political appointees in the Reagan Justice Department.

Translation: Judge Roberts opposed racial quotas and other racial preferences. He criticized the radical and foolish concept of basing pay on central planners’ subjective determinations of the “comparable worth” of different jobs. He fought against the usurpation by judges of the constitutional ability of American citizens to decide how to govern their states and communities. He opposed the creation of a racial quota system in electoral politics. And he read the provision in the Constitution that states that the Supreme Court “shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make” to mean, lo and behold, that Congress can “make” “Exceptions” to the Supreme Court’s appellate jurisdiction.
Let’s have this fight.

It’s All a Matter of How You Say It


Our redoubtable editor was on a language binge yesterday First, Kathryn offers readers this Washington Post headline: “Roberts Unlikely to Face Big Fight”. For those confounded by Post-speak, Kathryn offers “Translation: Nothin’s Sticking”. Next she provides a snippet from a 1984 Roberts memo (taken, I think again, from the Post ) about Michael Jackson. Roberts is quoted there as writing, “I recognize that I am something of a vox clamans in terris in this area. But “enough is enough”, he concluded.

Well, here finally is something that will stick . (And NRO scoops the Post!) John the Baptist’s was not a vox clamans in terris , but a vox clamantis in deserto, “the voice of one crying in the wilderness”. Check the Vulgate of Matt 3:3, Mark1:3, Luke 3:4, John 1:23, and, of course, the original at Isaiah 40:3.

If the hearings go badly, perhaps Judge Roberts will find alternative
employment at Georgetown.

Has Anyone Checked Sandy Berger’s Pants?


Washington, D.C. — Today, Senator Edward M. Kennedy sent a letter to the U.S. Department of Justice calling for an immediate investigation into the missing Affirmative Action documents referred to in the August 15 cover letter accompanying John Roberts’ documents from the National Archives and Records Administration (NARA).

The missing files, titled “Affirmative Action Correspondence,” had been in possession of unnamed Administration officials in mid-July, presumably before John Roberts was nominated to the Supreme Court.

With only a few weeks left to review these important documents, Senator Kennedy sent the following letter to the DOJ requesting a speedy investigation into this matter.



Today’s Washington Post reports Senate Democrats may refrain from attacking John Roberts, allowing him easy confirmation. Here is how the major media was reporting the Clarence Thomas confirmation after Thomas’ initial testimony before the Senate Judiciary Committee.

The New York Times
September 14, 1991
Thomas to Win High Court Seat, Senators Predict

The Washington Post
September 14, 1991
Thomas Gaining Momentum as Week Ends;
Senators’ Gentle Questioning on Fourth Day of Hearings Suggests Doubts May Be Put Aside
By Ruth Marcus

The Associated Press
September 14, 1991
Democrats Admit Thomas Heading Toward Senate Confirmation
By James Rowley

Los Angeles Times
September 14, 1991
Democrats Talk as if Court Seat for Thomas is Assured
By David G. Savage

The Atlanta Journal and Constitution
September 14, 1991
Frustrated Democrats take a softer line in questioning Thomas; Even skeptics seem to expect confirmation
By Bob Dart


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