Absent a disclosure that he has been moonlighting as Osama bin Laden’s legal counsel, John Roberts will be confirmed as an associate justice of the Supreme Court. George W. Bush deserves all the praise he is receiving for a politically astute selection: a nominee so smart, well-liked, and respected that it will be hard to mobilize hysterical opposition to him beyond the offices of NARAL. (I concede that I may be underestimating the shamelessness of the opponents, and the gullibility of the public.) But what would we be getting with a Justice Roberts?
Owing to his temperament, intellect, and experience–an exceptional student at Harvard, he went on to an A-list legal career in clerkships, the solicitor general’s office, the White House, private practice, and the Court of Appeals–Roberts looks like the most qualified candidate imaginable. In some ways he is Bork without a beard–and that difference is not trivial, given the sordid past of “Borking.” With his mischievous-frat-boy good looks, it will be hard to portray Roberts as the prince of darkness.
Who Is John Roberts?
But there is more difference than just a few facial hairs. Roberts, unlike Michael McConnell and other potential nominees, also lacks Bork’s substantial scholarly record and years of wrestling with the large and difficult questions of constitutional law, at least in his own voice. This, no doubt, was a virtue in the selection process. After Bork, public display of a brain is a political liability for aspiring justices. Contributing to Roberts’s confirmability, alas, is his lack of a paper trail to be manipulated and distorted. It is almost startling how little Roberts has said, even in his opinions; rarely has someone so smart said so little. To this we might breathe a collective sigh of relief: The law does not suffer from a shortage of pompous verbosity. And if his frugality of expression is a sign of humility about his own abilities and function, that might bode well for the rule of law–for a justice who won’t “legislate from the bench,” to use a worn and misleading phrase.
Which leads me to a more fundamental issue. If we are to avoid the sterility of legal positivism, we have to recognize that the Supreme Court is not just a guild of mechanics. The foundation of our legal and political system, of our rights and freedoms, lies not in the acts of Congress, but in the understandings of free, limited, and popular government that developed through the political culture of generations: the experience of autonomy and fraternity in market and community; the philosophic understandings of the Greeks, Judeo-Christian theologians, and the Scottish and English Enlightenments; and the common law. As written covenants the constitutions of states and eventually the federal government were virtually unprecedented, yet deeply grounded in theory and experience. The brief phrases of the Constitution, tethered by this understanding, enable freedom and self-government to flourish. But detached from history and context, they become dangerous toys in the hands of undisciplined judicial actors.
Therefore one of the most crucial aspects of Supreme Court justiceship–in sharp contrast to the role of an attorney in the Justice Department, solicitor general’s office, or private practice, or even of a circuit-court judge–is an ability to articulate a sophisticated and faithful understanding of the text, structure, and function of the Constitution and of the cultural and political underpinnings of our constitutional order. Without that we have not the rule of law, but a random series of fact-specific court rulings or, even worse, the crude imposition of judicial will.
Summer of Speculation
How will Judge Roberts meet this challenge? Will he have the capacity and inclination to articulate a sophisticated view of constitutionalism once he is on the Court? Commentators continue to scour his judicial opinions and earlier writings for clues. In a statement to the Senate Judiciary Committee released earlier this summer, he came out in favor of the rule of law, judicial self-restraint, modesty, and humility: not particularly profound, but soothing nonetheless to conservative nerves rubbed raw by the Court’s legacy of activism.
Yet in Roberts’s case, these comments seem to be more than platitudes. Two constants in his workmanlike opinions and briefs have been fidelity to the text and logic of the law, and recognition of its limits. In the Lujan case, for example, he helped persuade the Court to reject the virtually limitless standing to sue advocated by environmental groups. It was a small, technical decision–but also a major step toward restoring some sanity to the limitations on legal recourse. And his writings often convey a welcome aptitude for nuance and precision. In his Rancho Viejo dissent, for example, he pointed out that the question should be whether the incidental taking of toads is interstate commerce (which would justify federal regulation), not whether the regulation itself affects commerce by harming the developer. A picky distinction, but one of great import, as the latter interpretation virtually erases limits on federal regulation. Roberts’s “conservative” arguments are modestly grounded in this kind of close analysis, not grand theorizing.
And yet: Our constitutional order has gone awry, and close reasoning may not be enough to shift it back to the moorings from which it has been torn by the cynical instrumentalism of modern legal liberalism. Even some recent course corrections in regulatory takings and the Commerce Clause have been eroded, largely because there has not been a Court majority willing to engage in rigorous development of principle. Even Chief Justice Rehnquist, often a critical vote, has been somewhat lax: He has been a more able administrator of the Court than of the Constitution, frequently employing reasoning that is cursory at best. Roberts’s rigor will help repair the violence done to constitutional language in many areas, but persuasive articulation of basic principles will be needed to eradicate the bizarre developments of recent years.
Surely the Roberts hearings will not feature the kind of riveting discussion of law that characterized the Bork proceedings, and so we are not likely to gain much enlightenment there. Perhaps never again will the members of the Judiciary Committee be treated by a nominee as if they were worthy of a candid and informed discussion. Roberts will not repeat that “mistake,” as he will not be inclined to give Democratic attack dogs any red meat. And that is a shame, as the country will be denied an opportunity to witness a deep and thoughtful engagement on the most fundamental principles of our constitutional order. Understandable, but unfortunate.
The C Word
So where should we look, to get a glimpse of what a Justice Roberts would be like on the Court? I would suggest that part of answer lies in his Catholicism. Described as a “devout” Catholic, Roberts received a Catholic education before heading to the strongly secularist world of Harvard–in the 1960s, no less. When I see Roberts speak, ever so succinctly, or read his equally succinct writings, I see one of my students. In my 15 years at not only a Catholic university, but the Catholic University of America, many capable (and occasionally not so capable) students have come through my Constitutional Law classes. Many of my better students have been quiet, thoughtful, respectful, and very attentive to their obligations–but drawing them into critical argument can be another matter. Roberts’s record seems to reflect a Catholic discipline and comfort with hierarchical roles and authority; he has learned how to tame–in an amiable manner–his intellect and emotions for a larger cause or obligation, be it a president, a client, or the law itself.
It may be that such training is so embedded in Roberts’s character that he will be disinclined to engage in the larger dialogue necessary to responsible constitutional interpretation. But it seems at least as plausible that his Catholic humility and patience have helped him be content in his roles, and that he will understand and welcome the larger thinking required for excellence in the new role he has been called upon to perform. Given the strength of both his intellect and his religious faith, that seems particularly likely. And if this proves to be the case, and a more robust and forceful Roberts jurisprudence emerges, we will be glad that whispering in his ear, dampening his ego, will be that Catholic understanding of the frailty of man. Wedded to a forceful intellect not afraid to stand on principle, that constraint creates a fruitful, responsible balance, and surely the law and the Court could use that today.