Bench Memos

Sunstein on Roberts

In today’s WSJ (subscription required), University of Chicago law professor Cass Sunstein has an op-ed. The article posits a division between “fundamentalist” and “minimalist” conservatives. The former have an ideological commitment to restoring or remaking constitutional law, while the latter are content to address legal questions in small steps, “nudges not earthquakes,” and believe most social change should occur through democratic institutions, rather than the judiciary. On Roberts, Sunstein writes:

Many people feared President Bush would try to replace Sandra Day O’Connor, a minimalist conservative, with a nominee promoting an ambitious agenda for remaking American constitutional law. But there is not much evidence that the president’s choice, John Roberts, has such an agenda. In his two years on the federal bench, he has shown none of the bravado and ambition that characterize the fundamentalists. His opinions are meticulous and circumspect. He avoids sweeping pronouncements and bold strokes, and instead pays close attention to the legal material at hand. He is undoubtedly conservative. But ideology has played only a modest role in his judicial work. For example, he voted to allow a civil rights action to proceed against the D.C.-area subway system. In so voting, he rejected the claim, advanced by Reagan appointee David Sentelle, that Congress lacks the power to require the subway system to waive its sovereign immunity.

Splashing cold water on some media reporting of the younger Roberts’ views, Sunstein adds that “even in the heady 1980s, none of the young Mr. Roberts’ views was reckless or implausible: All of them could claim some existing legal support.”

Sunstein does not endorse Roberts in the op-ed, but he does not oppose him either. Rather, he cautions against premature opposition, and suggests liberals should keep an open mind.

The Roberts nomination is not welcomed by those who object to the rightward drift of the federal courts or believe that Justice O’Connor’s successor should be no more conservative than she. And on key issues, Judge Roberts will likely be on Justice O’Connor’s right. There is no assurance he will vote to uphold Roe, and it is most unlikely he will aggressively read the Constitution to protect vulnerable members of society.

But at this point in our history, the most serious danger lies in the rise of conservative judicial activism, by which the interpretation of the Constitution by some federal judges has come to overlap with the ideology of right-wing politicians. For those who are concerned about that kind of activism on the Supreme Court, opposition to the apparently cautious Judge Roberts seems especially odd at this stage. The far more reasonable path is to keep an open mind and to hope for a serious and substantive confirmation process. [Emphasis added.]

Sunstein’s caution may be notable because he has advised Senate Democrats on making ideology the basis for opposing Supreme court nominees and is the author of the soon-to-be-released book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America. On the other hand, the article stops short of backing Roberts’ confirmation, preserving Sunstein’s options to oppose Roberts should the hearings take an unwelcome turn, or should President Bush subsequently seek to elevate Roberts to chief justice.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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