Politics & Policy

In The Tradition of Brennan

The gifts John Roberts will bring to the Court.

Jhn Roberts is Bill Brennan.

No, no. (Don’t worry.) Not in terms of liberal ideology, but in the splendid gifts he brings to the Court. Like the late Justice William Brennan, John Roberts is a very likeable man. His personality is welcoming and even-tempered. He won’t be dealing with his Court colleagues by footnote and e-mail. From my personal experience with him from our days serving President Reagan, John’s style is one of personal visit and conversation. Disagree with John Roberts if you will, but then, expect him to stop by your office to ask why. And he will listen with respect and an open mind–but don’t be too sure that in the end it won’t be you, rather than he, who will have changed positions.

As everyone who has seen John Roberts in oral argument before the Supreme Court knows, he is one of the smartest lawyers in America. Not in a showy or pretentious way, but in the manner in which natural intelligence combines with hard work to produce positive results. You don’t win 25 cases before the high Court by shooting from the hip.

But, of course, the president did not select John Roberts on personality and intelligence alone. He wanted a justice who respects the American people to make their own democratic choices on the large and important issues of the day from the accommodation of religion to affirmative action. And yes, even abortion. There is a good deal of nonsense already circulating that John Roberts will just carry to the Court a political agenda to reverse Roe and the like. John Roberts is neither pro-life nor pro-abortion; he is pro-democracy–a uniquely American democracy under a rule of law. For John Roberts–as he has already ably demonstrated on the Court of Appeals–law is independent of any one judge. And individual judges are bound, and bound equally, by that law. Hamilton opined that the Court was the “least dangerous branch.” Well, it was–back when judges conceived of their role as resolving concrete and specific grievances and not as all-purpose problem solvers who far too casually overreach, and in so doing, prevent us from governing ourselves.

Joshua Rosenkrantz, who clerked for Bill Brennan, observed on his passing that “we remember him first and foremost as an extraordinarily wonderful human being who just cared so much about everyone who crossed his path, and then secondarily, as one of the most profound movers in our history, certainly in this century, on the Supreme Court.”

Those two qualities–wonderful human being caring of others and profound thinker of the law–aptly describe John Roberts as well. He has the potential of reshaping the Court–as a reliably conservative Bill Brennan–by his kindness.

Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He is a former constitutional legal counsel to Presidents Reagan and Bush.


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