My friend Jim Burling of the Pacific Legal Foundation thinks John Roberts will be a “disaster” for property rights on the Court. This is largely based upon Roberts’ representation of Lake Tahoe against landowners before the Supreme Court and a law review note they wrote in 1978. Like other Roberts critics on both left and right, I think Burling places too much weight on Roberts work as a private attorney. I’m also unconvinced a 27-year-old law review article proves how Roberts would rule in cases today.

But let’s say Burling is correct. Does this mean Roberts was a bad choice? Not at all — and I say that even though I agree with him that courts greatly underprotect property rights. It is inevitable that even a solid conservative justice will occasionally disappoint on high profile issues. Justices Scalia and Thomas have disagreed on many important points, ranging from the First Amendment, property forfeiture, executive power during wartime, and the standard of judicial review of agency decisions. At least one of them was “wrong” in each case, but that doesn’t mean either one is a “bad” justice. Thus, even if Burling is correct — and I hope he’s not — I don’t think this is a sufficient basis for opposing Roberts’ confirmation or believing that he was a “bad” choice for the court. Even the best conservative nominee will disappoint in the occasional case, and we should not expect otherwise.