Bench Memos

NRO’s home for judicial news and analysis.

Constitution in Exile


With NARAL’s self-immolation last week moving off the front pages, the Left is retooling its Roberts opposition strategy. From the NY Times:

Democrats and the liberal advocacy groups who support them say the party must frame the debate more broadly, in terms of legal precedents affecting the environment, workers’ rights and civil rights that could be overturned if the court tilts in a more conservative direction. “That’s what needs to be articulated,” said Ralph Neas, president of the advocacy group People for the American Way. “That’s what’s at stake, and no one is doing that effectively.”
When liberals focus on environmental and workers’ rights, they are usually referring to a mostly fictitious “movement” among conservatives the Left calls the “Constitution in Exile.” This is another scare tactic and should be challenged whenever presented.

For a debunking of the Constitution in Exile, see Michael Greve’s article, “Liberals in Exile.”

For a more substantive analysis, see the Federalist Society’s paper, “Can Bush Supreme Court Appointments Lead to a Rollback of the New Deal?”

Re: Hard Work Pays Off


Gerry Bradley wonders what John Roberts might say if asked by his fellow justices, “why do you think it is that we have been having so many 5-4 decisions up here?” I don’t know what he’d say to that, but I know what I would: “Because for some reason there were frequently four of you–but just four–willing to follow Wrong Way O’Connor. So you tell me, how come?”


Hard Work Pays Off


Ed Whelan posts John Roberts’s provocative thesis (from Roberts’s 2003 hearings) that there is a right answer in every case and that judges who work at it will find it. That is why, Roberts opined, the DC Circuit’s panel decisions are unanimous 97% of the time. They are “hard-working judges,” Roberts asserted.

Maybe. But I sure would like to be a fly on the wall of the Supreme Court conference room when someone asks Justice Roberts: “So, John, why do you think it is that we have been having so many 5-4 decisions up here?”

Re: Kirsanow on Roberts


Matt, I wholeheartedly agree with your praise for Peter Kirsanow’s essays. Indeed, I was wondering just this morning which court he should grace.

Your perception that Judge Roberts embraces the old-fashioned belief that there are correct and incorrect answers to legal questions is also right on, as Roberts’s testimony from his 2003 confirmation hearing shows:

“I do think there is a right answer in a case, and I think if judges do the work and work hard at it, they’re likely to come up with the right answer. I think that’s why, for example, in the D.C. Circuit, 97 percent of the panel decisions are unanimous, because they are hard-working judges and they come up with the same answer in a vast majority of the cases.

“There are certainly going to be disagreements. That’s why we have Courts of Appeals, because we think district courts are not always going to get it right. But I do think that there is a right answer, and if the judge and lawyers would just work hard enough, they’d come up with it.”

Kirsanow on Roberts


Has anyone over here at Bench Memos paid proper tribute to Peter Kirsanow? Today he has his third article on John Roberts, once again very informative–and once again very good news about Roberts’s jurisprudence. (Previous Kirsanow articles are here and here.)

The really good news–compiled as well by the indefatigable Ed Whelan all over this page–is that it appears John Roberts has a sound understanding of the illegitimacy of judging according to a results orientation, and that he unabashedly believes (what is scandalously disbelieved all over the legal academy) that there are correct and incorrect answers to interpretive questions under the Constitution.


Roberts’s White House Counsel Records--Equal Pay vs. Comparable Worth


I’m not inclined to give John Roberts much credit for criticizing the “comparable worth” theory, and I doubt that he would expect much. For the “comparable worth” theory is so patently foolish that rejection of it would be a sensible criterion for eligibility to take part in public life.

Let’s begin with the elementary fact that “comparable worth” is radically different from “equal pay.” Some in the media still don’t understand that, as USA Today’s story titled “Roberts scoffed at equal-pay theory” shows. “Equal pay for equal work” means simply that men and women should receive the same pay for doing the same (or substantially the same) work. It is relatively easy to administer, and does not invite economic dislocation.

“Comparable worth,” by contrast, calls for judges or an army of bureaucrats to (in Roberts’s accurate description) “decide how much a particular job is worth, and restructure wage systems to reflect their determination.” If the marketplace pays truck drivers more than laundry workers, but a judge decides both jobs are “worth” the same, then the judge will mandate that they be paid the same (as a district judge in fact did in 1983). In short, “comparable worth” (again, as Roberts puts it) “mandates nothing less than central planning of the economy.”

There’s a good reason “comparable worth” has disappeared from the public debate: It’s a loony idea. It’s understandable that labor economists would promote the idea, for it would vastly expand their power. But the additional support it received from liberals is a testament to the validity of Mark Helprin’s recent explanation of liberals: “if you have no understanding of economics, strategy, history and politics, then naturally you would be a liberal.”

In 1984 Roberts strongly criticized a letter from then-representative (and now senator) Olympia Snowe and two others that was supportive of comparable worth: “I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept. Their slogan may as well be ‘From each according to his ability, to each according to her gender.’ ” USA Today quotes Snowe as responding yesterday: “Hopefully, 21 years later, Judge Roberts possesses an openness with respect to issues of gender-based wage discrimination.” Let’s hope that, 21 years later, Snowe recognizes that Roberts was right on comparable worth.

The Tragedy of Abortion


Before anyone gets too worked up one way or another re: Roberts: It should be noted that Hillary Clinton has called abortion “tragic.”

I can feel Barbara Boxer’s tears.



This just in: there is no such thing as judicial activism, according to the NYTimes. Justice Sunday might not be my kinda way to spend a Sunday, but “inaccurate” after the NARAL debacle? Oh, maybe that’s the point. Even on inaccuracy, plus, the Right is extreme and scary.

To Know Know Know Him...


John Roberts on equal-pay where’s-my-dollar? nonsense; Just ignore the USA Today misogynist frame and read what Roberts wrote:

In his memo to White House counsel Fred Fielding, Roberts said the women’s letter “contends that more is required because women still earn only $0.60 for every $1 earned by men, ignoring the factors that explain that apparent disparity, such as seniority, the fact that many women frequently leave the work force for extended periods of time. … I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept. Their slogan may as well be, ‘From each according to his ability, to each according to her gender.’ “
Yes, yes. This is the justice I want replacing I-Wish-He-Were-A-She O’Connor.

Seeing Sights That Almost Stop Your Heart


John Roberts vs. Michael Jackson:

“The office of presidential correspondence is not yet an adjunct of Michael Jackson’s PR firm,” Roberts wrote in a memo to his boss on June 22, 1984, opposing a request by the singer’s publicist for a presidential letter praising the star’s work against drunken driving.

In opposing the wishes of Jackson, Roberts acknowledged that he was a voice in the wilderness — but being a future Supreme Court nominee, he used the Latin. “I recognize that I am something of a vox clamans in terris in this area,” he wrote, “but enough is enough.”

Can You Feel the Disappointment in the Air?


From the Washington Post this morning: “Roberts Unlikely To Face Big Fight.”

Translation: Nothing’s Sticking!

Roberts, Raspberry & Busing


It’s interesting that one of William Raspberry’s complaints about Judge Roberts is that he has been an “advocate of positions,” such as limitations on mandatory busing, “seem well out of the settled mainstream” to “civil rights partisans.” Raspberry, after all, has himself often advocated positions “well out of the settled mainstream” as judged by “civil rights partisans.” Raspberry has criticized civil-rights groups for failing to support school choice and has raised doubts about the value of forced busing to improve educational opportunity for African Americans.

Enviros and Roberts


This WSJ article on environmentalists’ views on the Roberts nomination does a good job of fairly characterizing Roberts’s record. Of note, it quotes the Sierra Club’s David Bookbinder saying, “His record on the D.C. court is even-handed . . . There is certainly no pro- or anti-environmental bias we can see. We’re glad, but these are not the sort of cases that go to the Supreme Court.” What’s particularly interesting about the article is that it makes clear that many environmentalist legal types are more concerned with the policy outcomes in environmental cases than they are with the legal questions at issue. In this environmentalists are not alone – indeed, it can be said of many activist groups – but it is worth nothing nonetheless.

Roberts’s White House Counsel Records--The Exclusionary Rule


In January 1983, Roberts wrote a memo that highlighted a recent National Institute of Justice study on the effect of the exclusionary rule. (The exclusionary rule, the judicially crafted remedy for violations of the Fourth Amendment, generally bars illegally obtained evidence from being admitted.) According to Roberts’s memo, “the study shows that the exclusionary rule resulted in the release of 29% of felony drug arrestees in Los Angeles in one year—a far cry from the highly misleading 0.4% figure usually bandied about.” Roberts concludes: “This study should be highly useful in the campaign to amend or abolish the exclusionary rule.”

Roberts’s White House Counsel Records--Voluntary School Prayer


In June 1985, the Supreme Court ruled in Wallace v. Jaffree that an Alabama statute that authorized a period of silence in public schools for “meditation or silent prayer” violated the Establishment Clause. On the day of the ruling, John Roberts prepared a memorandum for the White House Counsel that summarized and discussed the ruling. Roberts opined that “careful analysis shows at least a majority of the Justices would vote to uphold a simple moment-of-silence statute.” But “the decision shows we still have an uphill battle to return prayer to schools.”

In November 1985, with the benefit of 5-1/2 months’ time to reflect on Wallace v. Jaffree, Roberts commented that the conclusion in that case “that the Constitution prohibits such a moment of silent reflection—or even silent ‘prayer’—seems indefensible.” Roberts made his comment in the course of discussing a proposed constitutional amendment to permit “silent prayer or reflection in public schools,” an amendment that he expected the Reagan administration to support.

Roberts’s White House Counsel Records--Abortion


Two items are noteworthy (in addition to Roberts’s unequivocal condemnation of bombings and other acts of violence against abortion clinics):

1. In October 1985 Roberts was asked to review a proposed telegram to be sent from President Reagan to a memorial service to be held in Los Angeles for some 16,500 aborted fetuses that had been discovered at a medical laboratory in 1982. The draft telegram, quoting Lincoln’s words at Gettysburg, stated that “just as the terrible toll of Gettysburg can be traced to a tragic decision of a divided Supreme Court, so also can the deaths we mourn.” It stated that Roe “made void all our laws protecting the lives of infants developing in their mothers’ wombs” and noted that “[o]nce again [as in Dred Scott] a whole category of human beings had been ruled outside the protection of the law by a court ruling which clashed with our deepest moral convictions.” The draft prayed that God would “speed the day when the right to life of every human being . . . is honored and protected by our laws and our public policy.”

Roberts wrote that he had “only one small objection” to the text of the draft telegram–namely, that it would be more accurate to say that Roe voided “many of our laws” rather than “all our laws.” He added that, in accord with Reagan’s position on abortion, a “memorial service would seem an entirely appropriate means of calling attention to the abortion tragedy.”

2. In June 1985 Roberts was asked to review talking points that had been drafted for President Reagan for a telephone call to an anti-abortion rally in Los Angeles. Approving the talking points, Roberts noted that they “call for reversing ‘the tragedy of Roe v. Wade,’ ” “not[e] advances in medical technology that permit increased care for the unborn, and applaud[] those who are providing compassionate alternatives to abortion.”

Roberts’s White House Counsel Records


I’ve spent much of today reviewing several thousand pages of documents from John Roberts’s files as a White House lawyer from 1982 to 1986. These documents show that John Roberts was a forceful proponent of Reagan administration policies on abortion, school prayer, the exclusionary rule, and other hotly contested issues. Those who try to portray Judge Roberts as a squishy moderate will not find any supporting evidence in these documents.

I’ll have a series of posts on these records as soon as I am able.

Raspberry Vinaigrette


By now this is like shooting fish in a barrel, but some fish just ask for it. As I noted this morning, William Raspberry opines in his Washington Post column today that “to civil rights partisans” (that includes him, of course), Roberts has taken positions that “seem well out of the settled mainstream.”

Like a lot of liberal pundits, Raspberry has a lazy way of assuming that such fog-words as “mainstream” have an accepted meaning that is uncontested by people of good faith. But just what is the “mainstream” in constitutional interpretation is contested all the time, and has been since John Jay became the first chief justice.

Chin-pulling about hewing to the “mainstream” has preoccupied Raspberry’s columns about Robert Bork, on July 3, September 14, and September 21, 1987; about who would be next to be nominated after Bork’s defeat, on October 16, 1987; about the first President Bush’s future nominees to the Court, on November 11, 1988; about Clarence Thomas on July 10, August 7, and September 11, 1991; and about John Ashcroft’s nomination as attorney general, on January 19, 2001.

Raspberry’s record is completely devoid of any worries about whether Democratic presidents’ nominees are in or out of the “mainstream.” He simply assumes they are in it. The mainstream is, it appears, the possession of liberal Democrats, and Raspberry mans one of the picket boats defending its pristine waters from entry by “extremists” nominated by Republican presidents.

Once upon a time, the “mainstream” in constitutional jurisprudence was the principle of “separate but equal” under the Fourteenth Amendment. One of Raspberry’s heroes, Thurgood Marshall, thought that mainstream wasn’t good enough. But it hasn’t seemed to occur to William Raspberry that “out of the mainstream” is an epithet, not an argument.

More Questions About Questions


Robert Alt finds an opinion he attributes to me “incredible.” He ascribes to me the position that senators must ask questions about specific pending cases, or they fail to do their constitutional duty under the Article I “advise and consent” clause. But that is not my position. My position–as staked out in a couple of posts last week–is that a senator who knows nothing definite about what a nominee thinks the Constitution says about secularism, abortion, and same-sex marriage should not consent to that nominee’s appointment. How could “consent” in such a state of ignorance be squared with a senator’s duty to uphold the Constitution which, by my hypothesis, has been grossly distorted on these matters by the Court? How would “consent” in this state of ignorance be conscientious?

My post in response to an intervention by Ramesh makes especially clear that my position is not that senators must ask about specific cases, pending or otherwise. My position has to do with what a senator needs to know to do his job. Mine is a position about what information is needed to make a conscientious decision, a decision which the Constitution charges a senator to make. As I said in response to Ramesh: Consider a nominee whose views on secularism, abortion, same-sex marriage and the Constitution are crystal clear coming into hearing. Consider, I said, a nominee such as I. A conscientious senator could vote me up or down without any hearings at all.

I do think that broad questioning of a nominee less notorious than I may be needed for a senator to discharge his or her constitutional responsibility. If it is needed, the senator should ask. Robert Alt may agree with me here so long as questions about “specific cases” are avoided. Maybe Robert even agrees with me that senators may (should?) be seeking to learn from a nominee through broad, but not case-specific questioning, what I think needs to known before consenting–the Constitution and secularism, etc. If so, the remaining issues between us may be too insignificant to debate in a public forum.

Just in case, though, I should like to respond to a few points Robert makes against what he takes to be my position.

One is his claim that “grilling” nominees has a short history, going back (he says) no further than Brown v. Board of Education. I grant this point, but I do not see what difference it makes. I never argued for broad questioning on the basis of historical practice. I do not know anyone who has. Robert does not seem to suggest that the pre-Brown practice sets a constitutionally required standard for senators. (It does not.)

Maybe perfunctory hearings were not a good idea even back when senators
thought they were. A few years after Brown senators chose to ask little of two Republicans nominees to the Supreme Court sent up by Eisenhower. These two men sailed through the Senate. I wish they had not. In fact, Ike later wished that they had not; he regretted their appointment to the Court. But each had political/demographic credentials which made them attractive to Ike; in one case, the nominee’s religion was his central qualification. These men were Charles Whittaker, as undistinguished a justice as ever sat on the Court, and a man whose nervous system was broken by the work. The other man filled the “Catholic seat” on the Court. His name was William Brennan.

For that matter, Ike regretted his first high court appointment, another man whose political credentials got him the him the job. His name was Earl Warren.

Robert thinks it is “tad peculiar” for conservatives to rely upon a times-have-changed argument. I cannot imagine why he should find it so. Times do change. “Conservatives” along with everyone else have to deal with it. Robert himself recognizes that times have changed; at least, he seems to agree that the Court has become “politicized” in new and important ways. Indeed it has. I do not think anything in “conservatism” holds that appointments to a regrettably politicized institution must not be made with that (regrettable) fact in mind. Indeed, my main point is that the Court has gone well beyond and even against the Constitution on important matters, and that we want to know whether a nominee will bring back the Constitution. If that is too “political” (or something) for Robert, so much the worse for him.

Here are two of the many changes since around 1950 that warrant stricter scrutiny of a Supreme Court nominee. One is “incorporation” of the Bill of Rights in a series of cases culminating in the 1960’s criminal procedure revolution. (Miranda and all that.) “Incorporation” put the Supreme Court in charge across the country of church-state, law enforcement, trial practice, and a host of other matters theretofore reserved to the states. “Incorporation” has resulted in massive bodies of detailed regulation, all under the heading of broad constitutional phrases such as “unreasonable search and seizure”–practically, a common law of search and seizure, of confessions, of “separation” of church and state, etc. These bodies of law include lots of balancing tests and calls about reasonableness and rationality that rest, in part, upon value and policy judgments of the courts. Why not ask then what policies and values a nominee favors?

Two: The role of political parties in American history has been such that much of what senators would want to know about a nominee was conveyed summarily by his party affiliation. If a Republican president nominated a Republican stalwart to the Court in, say, the late nineteenth century, and you knew pretty much what you are getting. The practice since abandoned of nominating leading “public men” to the bench–and not nearly so many sitting judges–contributed to effective shorthand communication. Republican president nominates a sitting Republican judge to the bench in the late twentieth century, and you get . . . David Souter.

Robert says that the “real concern” should be whether a judge views the Court as another “political or legislative body.” I think he means for senators to act as if it were not, no matter what has been happening for, say, 50 years on the Court. Well, okay, I guess. But how much work is this concept going to do now?

What does it mean to say that someone is fit for the Court so long as he views it not as “a political or legislative body”? Some law professors and columnists speak approvingly (i.e., prescriptively) of the Court as a “political” or “legislative” body. They are not going to be nominated to the Court. But fewer and fewer do: We are all “originalists” and “interpetivists” now, they say. And they say this, too: Reversing Roe now would be a “political” act; the wise judicial statesman stays the course, as three Republican appointees told us in Planned Parenthood v. Casey.

On the other hand, many law professors and columnists describe the Court these last few decades as behaving in a “political” or “legislative”
way. They are right. But even these folks (and Roberts may be one of
them) are going to be very reluctant to identify at hearings any particular binding precedent as “political” or “legislative.” To do so would signal a firm intention to overrule, and this would violate some people’s idea (not
mine) of proper hearings etiquette. Besides, to identify a particular piece of settled law as “legislative” or “political” is to invite an avalanche of further questions about what, exactly, distinguishes sound interpretation from judicial legislation. Again, that is not where a nominee is going to want to go.

Chills! Where’s Barry Lynn?


WASHINGTON - As a young government attorney, John Roberts advised the White House to support congressional efforts to allow school prayer, arguing that a Supreme Court ruling striking down the practice “seems indefensible.”


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