For Democrats, the early reaction mingled relief and resignation over John Roberts -- relief that President Bush had chosen a highly competent judge with a distinguished résumé rather than an ideologue, and resignation to the fact that such a person would be difficult, if not impossible, to defeat. The resignation remains -- I have yet to hear any suggestions that there is a realistic chance of blocking the nomination -- but the relief is receding.
Increasingly, Roberts is looking like a reliable conservative on the issues of the day. What we can surmise about his likely positions suggests that he will make movement conservatives quite happy -- especially when compared with the justice he would replace, Sandra Day O'Connor, whose unwillingness to toe the party line was notorious. If confirmed, Roberts would make a real difference on the Court, in a wide variety of areas, and he would push it consistently to the right. Consider the following:
1. Executive Authority. In Hamdi v. Rumsfeld, Justice O'Connor's opinion rejected the executive's claimed authority to detain American citizens indefinitely without trial, charges, or access to counsel. “A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens,” she wrote. Roberts seems a good deal less enthusiastic about the role of the courts as guardians of rights; as a Department of Justice employee, he argued that it would be constitutionally permissible to strip all federal courts -- including the Supreme Court -- of jurisdiction over issues on which its rulings displeased the elected branches. More generally, he has repeatedly endorsed the idea of judicial restraint -- the principle that judges should decide only those issues they are compelled to and should hesitate to interfere with the popular will as expressed through the elected branches of government.
2. Affirmative Action. O'Connor's opinion in Grutter v. Bollinger announced that race-based admissions preferences were constitutionally permissible if race was used as one factor in a holistic assessment of candidates. The substitution of Roberts could erase the five-justice Grutter majority. Roberts' opinion on affirmative action is unknown, but memos from his time in Ronald Reagan's Justice Department suggest that he thinks it is ill-advised. Of course, thinking that affirmative action is bad policy should not lead one to suppose it is constitutionally impermissible, and a judge who believes in judicial restraint might be expected to defer to more representative bodies. But when affirmative action comes up, conservative judges have consistently been willing to invoke ambiguous constitutional language to set aside the results of democratic politics, and it is probably naive to think that Roberts would be different.
3. Abortion. Judge Roberts' statement, during his 2003 confirmation hearings for a federal appellate court, that Roe v. Wade was “settled law” he would faithfully apply, has been widely reported. But lower federal judges are bound to apply even those Supreme Court precedents they think the Supreme Court should overrule, so this assertion tells us very little about how Roberts might vote as a justice. Viewing the matter realistically, there is almost no doubt that Roberts believes Roe was wrongly decided; one would seek long and hard for a conservative Catholic advocate of judicial restraint who does not think that. Whether he would vote to overturn Roe is a separate question, but it may not even be the most important one. Overturning Roe would create serious tensions between the libertarian-corporate wing of the Republican Party and the religious right, threatening an alliance that is already showing signs of strain.
It would be more desirable, from the administration's standpoint, to preserve the abortion right in name but to interpret it narrowly to allow progressively greater restrictions. The ultimate outcome would be a regime in which abortions were available to those with time, money, and education, but quite hard to obtain for those without. This process was begun in Planned Parenthood v. Casey, but stalled by the vote of O'Connor when the Court rejected a ban on “partial-birth abortion” in Stenberg v. Carhart. Come the next case, Stenberg is unlikely to stand. Even if Roberts would adhere to Roe on stare decisis grounds, he would very likely accept a narrow reading.
4. Federal Legislative Power. Roberts has questioned the constitutionality of some applications of the Endangered Species Act, which suggests that he would endorse the limits placed on congressional power by the Court in recent years. O'Connor was a consistent vote for narrow interpretations of Congress' authority, but not as extreme as Justices Antonin Scalia or Clarence Thomas. Where Roberts would fall on the federalist spectrum is unclear.
5. Sexual Orientation. As an advocate of judicial restraint, Roberts is unlikely to endorse the freewheeling due-process-clause jurisprudence that has driven the expanding recognition of the rights of gays and lesbians, most recently in Lawrence v. Texas. O'Connor was also skeptical on due-process grounds -- she joined the majority in Bowers v. Hardwick, upholding a criminal prohibition of same-sex sodomy -- but she reached the same result on an equality rationale in Lawrence.
Given an array of likely positions so neatly tracking the administration's wish list, the most immediate question might be why anyone accepts the assertion that Roberts is not an ideologue. The answer is that, with the exception of the unverified speculation about affirmative action, the above views can fairly be traced to what law professors Jack Balkin and Sandy Levinson have called high political preferences -- beliefs about the appropriate roles of the branches of government and the scope of the democratic process -- that are not linked to any low or partisan politics.
Roberts wants to afford the democratic process a wide range of activity, reserving judicial intervention for exceptional cases. He also seems to want to reserve a significant sphere of activity to the states. Whether these principles favor a conservative or a liberal political agenda will depend on who controls the state and federal governments. Judicial restraint and federalism have had a conservative valence since the 1980s, but restraint was the motto of liberals in the '20s and '30s, while a conservative Supreme Court was championing individual liberty against economic regulation. And as the Republicans have taken hold of the elected branches of the national government, federalism has increasingly seemed liberal -- think of California's medical marijuana or Oregon's right to assisted suicide, to say nothing of Massachusetts' same-sex marriage.
If Roberts is indeed a high political true believer, rather than a low political ideologue, Democrats might take some comfort in the fact that ideology drifts. There is no way to know what the issues of tomorrow will be, and a high political stance that suits the Republican Party now may fit much less well in 10 or 20 years. (Abortion became the defining issue of Harry Blackmun's career, but at the time of his confirmation, it was far enough below the horizon that no one asked him about it.) But as the war on terrorism morphs into the global struggle against violent extremism, the issue of executive power seems likely to occupy center stage for quite a while.
On this point, President Bush's favorite justices have taken quite different positions, with Scalia standing for freedom from arbitrary detention (at least for citizens within the United States) and Thomas refusing to second-guess the executive's assertions. Bush was never shy about his intent to nominate another Scalia or Thomas, and it seems unlikely that Democrats can do much to stop him. But on this issue we should take care to find out which we're getting.
Kermit Roosevelt teaches constitutional law at the University of Pennsylvania law school. He is the author, most recently, of the novel In the Shadow of the Law.
