Politics & Policy

Roberts’s Rules of Order

The Constitution doesn't live and breathe in his body of work.

When reviewing the opinions written by John Roberts during his tenure on the D.C. Circuit Court of Appeals, especially in conjunction with his briefs and memoranda written while an advocate in counsel, one is struck immediately by five things:

‐a formidable legal acumen.

The distillation of the first four elements above is the antithesis of judicial activism.

The Senate Judiciary Committee recently asked Judge Roberts to comment on judicial activism. The committee defined judicial activism as a usurpation by the judiciary of the prerogatives of the other branches of government. The committee noted that some of the characteristics of judicial activism include:

A. A tendency by the judiciary toward a problem-solution rather than grievance-resolution;

B. A tendency by the judiciary to employ the individual plaintiff as a vehicle for the imposition of far-reaching orders extending to broad classes of individuals;

C. A tendency by the judiciary to impose broad, affirmative duties upon government and society;

D. A tendency by the judiciary toward loosening jurisdictional requirements such as standing and ripeness; and

E. A tendency by the judiciary to impose itself on other institutions in the manner of an administrator with continuing oversight responsibilities.

Roberts responded that to the extent the judiciary makes unjustified intrusions into the realm of public policy, the criticism of judicial activism is well-founded. Courts shouldn’t stray into policymaking, an area reserved by the Constitution to the political branches responsible and responsive to the people. It’s not the function of the court to either make or execute the law.

Roberts’s response to the Judiciary Committee makes clear that he doesn’t consider it judicial activism when courts carry out their “Constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts.” Quoting Justice Marshall in Cohens v. Virginia, Roberts maintains that refraining from judicial activism doesn’t mean that courts can abdicate their responsibility to interpret the law: “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given…Questions may occur which we would gladly avoid; but we can not avoid them. All we can do is to exercise our best judgment, and conscientiously to perform our duty.”

Or, as Marshall stated in Marbury v. Madison: “[i]t is emphatically the province and duty of the judicial department to say what the law is.”

Of course, “interpretation” of the law can sometimes shade imperceptibly into activism. Roberts recognizes that because the Framers insulated the federal judiciary from popular pressure or accountability (unelected judges with lifetime tenure), courts and judges must exercise institutional and personal modesty and humility lest they succumb to activism. Roberts asserts that judicial modesty manifests itself in at least three ways: (1) a judge’s recognition that his role is limited–he isn’t licensed to solve society’s problems, but to decide individual cases according to law; (2) adherence to precedent and understanding the importance of stability in the legal system; (3) collegiality and appreciation for the analysis of fellow judges on the court.

Roberts’s written opinions while on the D.C. Circuit are faithful to the views expressed in his response to the Judiciary Committee. His comments on judicial activism make no reference to interpretive doctrines such as originalism. But his precise repudiation of judicial activism has tones of both Frankfurter and Jackson that should resonate with originalists and textualists. It should also resonate generally with responsible liberals and conservatives alike. Proponents of the living, breathing Constitution, on the other hand, may be a bit chagrined.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights and an attorney in Cleveland, Ohio. These comments do not necessarily reflect the position of the commission.

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