The John Roberts hearings have not yet been gaveled to a close, but what we've seen so far suggests that they were over before they began. Roberts entered the hearings in as strong a position as he could hope for, universally acclaimed for his competence and affability, with little incriminating material in the records the senators and the press have been poring over. The worst that could be said of him was that his youthful memos at moments suggested a streak of snideness and displayed no marked ability to empathize with the less fortunate.
If the perception of arrogance was the greatest threat to Roberts' confirmation chances, his performance has been assiduously tailored to defuse it. In his opening statement, Roberts unveiled the theme he would return to repeatedly: He is a humble man who is conscious of the limited role of judges. When the topic of his memos came up, he turned the question aside with self-deprecating humor, explaining, “I knew a lot more at 25 than I do at 50.” And he has taken every opportunity to make himself appear less threatening to those worried that he may shift the Supreme Court to the right. He is, he has said, respectful of precedent, open to the views of his colleagues, and unwilling to subscribe to any particular school of constitutional interpretation.
Roberts has also repeatedly refused to discuss particular Supreme Court decisions, or specific issues that might come before the Court. At the same time, he has refused to discuss legal issues in the abstract, responding that his decision would have to take into account the facts of the case. Despite Roberts' skill at defense, some interesting tidbits have slipped out. If they are to be believed, he is indeed a relatively moderate and restrained judge, not someone who would seek to work radical changes in the Court's jurisprudence.
Abortion
Roberts' remarks on Roe v. Wade and Planned Parenthood v. Casey were exquisitely careful, but they suggest that he would hesitate to overrule Roe. Roe is “settled as a precedent of the Court, entitled to respect under principles of stare decisis,” he said. Moreover, Roberts appears to accept the Casey plurality's account of stare decisis; he agrees that Casey identified the appropriate factors to consider in deciding whether to overturn a precedent. That need not mean that he believes the plurality applied those factors correctly; one of the many memorable moments of that dramatic case is Justice Antonin Scalia's point-by-point rebuttal of the plurality's stare decisis analysis. But Roberts said something further. Casey, he said, “is a precedent on whether or not to revisit the Roe v. Wade precedent,” itself entitled to stare decisis respect. Revisiting Roe would thus seem to require Roberts to conclude not only that the Casey stare decisis analysis was wrong but that it has proven unworkable or been undermined by later doctrinal developments. In response to a question from Senator Arlen Specter, Roberts also stated that he agreed “as a general proposition” with the Casey plurality's statement that “[t]he ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”
Substantive Due Process
Abortion is just one of the rights the Court has identified as part of the liberty protected by the due-process clause. Conservative judges and scholars have regularly attacked the entire idea of substantive due process. Roberts did not. He endorsed the Court's understanding that “the liberty protected is not limited to freedom from physical restraint, and that it's protected not simply procedurally but as a substantive matter as well.” Indeed, he announced that he agreed with Griswold v. Connecticut, the case that proved the fountainhead of substantive due-process jurisprudence. Of course, the steps from Griswold to later decisions such as Roe are not necessarily clear, but Roberts took one of the less obvious ones when he assured Senator Dianne Feinstein that he did not “have any problem” with the extension of Griswold to unmarried couples.
The Living Constitution
When President Bush announced his intention to appoint justices in the mold of Scalia and Clarence Thomas, he identified not just two conservatives but also two outspoken “originalists.” Originalists believe in deciding cases as they would have been decided immediately after the ratification of the relevant constitutional provisions, and they are generally willing to discard precedents in the name of restoring the original meaning of the Constitution. It has always been clear that Roberts is not an originalist, but he seemed willing to distance himself emphatically, if implicitly, from Scalia and Thomas. In the course of his discussion of substantive due process, Roberts endorsed the approach of the late Justice [John Marshall?] Harlan (which would align him with Justice David Souter on the current Court) and stated, “I agree that the tradition of liberty is a living thing, yes.”
Federalism
When asked to discuss recent cases limiting the power of Congress to legislate under the commerce clause, Roberts seemed to see few barriers. He suggested to Senator Feinstein that the key to United States v. Lopez, which struck down the Gun-Free School Zones Act, was the lack of a jurisdictional hook in the statute, something that would be “fairly easy to show in almost every case.” Later, responding to Senator Jeff Sessions, he observed that the recent [“Gonzales v.”] Raich decision had “put [“United States v.”] Morrison and Lopez in context” and demonstrated that they were not “junking all that came before.”
Executive Authority
Responding to Senator Patrick Leahy, Roberts stated, “I believe that no one is above the law under our system, and that includes the president.” That sounds like a universally accepted bromide, but, sadly, it does distinguish Roberts from some people, including lawyers in the Justice Department's Office of Legal Counsel (OLC). Roberts went on to at least implicitly disagree with OLC memos arguing for a presidential commander-in-chief power not susceptible to congressional restraint. He endorsed Justice Robert Jackson's exposition, in Youngstown Sheet and Tube v. Sawyer, of executive power as varying depending on the existence of congressional approval or disapproval. (The OLC memos, by contrast, ignored Youngstown entirely.)
What these remarks suggest is that Roberts will not be a wrecking ball, not a conservative out to change the tenor of the Court. That would have been a safe bet anyway; even aggressive conservatives like the young William Rehnquist tend to grow more moderate after assuming the chief justice's chair. We have not learned anything definite about his positions; there is nothing in the hearings that would prevent him from voting either way in almost any imaginable case. Nowadays, that is apparently considered the appropriate result, on the grounds that a too-transparent disclosure of the nominee's thoughts would suggest bias against future litigants and compromise the independence of the judiciary.
It is not at all clear that either of these concerns holds water. For the first, a judge's ability to judge a case impartially is surely dependent more on whether he has decided his position on an issue than on whether he has revealed that decision to anyone. No one is asking Roberts to make up his mind on issues on which he is undecided; they are simply asking him to disclose opinions he holds already. That disclosure is something that sitting judges do every time they write an opinion, and no one suggests that their impartiality is compromised when the same issues come before them again.
The concern about the independence of the judiciary is somewhat more serious. One thinks immediately of nominees promising to vote in certain ways on certain issues in exchange for confirmation, and this vision is colored by the related one of a nominee promising to vote in favor of a certain litigant -- that is, accepting confirmation as a bribe. But the two images are actually quite different. Voting for a litigant because of his or her identity is per se inconsistent with the judicial role. Voting for a legal outcome because it is believed correct is not, and honestly disclosing one's current thinking on a constitutional issue is not improper. Promising to vote in accord with that thinking would of course be improper, not least because judges must be free to change their minds, but no one is asking for promises.
Constitutional questions, conservatives have reminded us with increasing fervor, are matters of law and not policy. They have right answers, which do not depend on the political preferences of the judges. Senators, like anyone else, are entitled to reach their own conclusions about the right answers, and they are presumably also entitled to vote in favor of nominees they believe will interpret the Constitution correctly and against those who will not. There can hardly be a better way to decide that than asking about specific issues, or at least specific past decisions.
Sadly, we have had not had the chance to hear straight answers to those kinds of questions. John Roberts will smile and hedge and sail through the confirmation process. And both sides will watch, appreciating his humility and hoping they just saw a wink.
Kermit Roosevelt is an assistant professor of constitutional law at the University of Pennsylvania Law School. He clerked for Justice David Souter in the 1999-2000 term and is the author, most recently, of the novel In the Shadow of the Law.
