These are not easy days to be caught wearing black robes; judges all over have grown alarmed as the Supreme Court has become the Fallujah of American politics. Tom DeLay threw down the gauntlet in the late 1990s, declaring that “judges need to be intimidated.” After the Terri Schiavo tragedy, Senator Tom Coburn's chief of staff demanded mass impeachments. Pat Robertson called federal judges a worse threat to American democracy than “bearded terrorists who fly into buildings,” while James Dobson of Focus on the Family compared jurists to the Ku Klux Klan.
Congress is following this madcap rhetoric with radical measures of its own, trying to strip courts of their power to hear certain classes of cases. Last year the House of Representatives passed a measure to forbid federal courts from hearing cases involving the Pledge of Allegiance. Another bill would deny them the power to hear any suit involving a governmental official's “acknowledgment of God as the sovereign source of law, liberty, or government.” Inside the Beltway and out, a war is raging over the power and independence of our courts.
Enter John Roberts. He should be asked to repudiate these extremist attacks, now and as chief justice if he is confirmed. Senators should press him to discuss his views on the threat to constitutional issues checks and balances implicated by such “court-stripping” legislation. As a government lawyer seeking to influence policy, he wrote extensively on these issues. Before he's given a job for life, it's only fair that he be asked to discuss them.
In 1982, as a young Justice Department lawyer, Roberts took on future Solicitor General Ted Olson over court-stripping bills designed to keep courts from even hearing certain constitutional disputes involving hot-button issues like abortion, school prayer, and busing. Olson prepared a memo laying out both sides, where he suggested that opposing court stripping “will be considered as a position of courage, integrity and principle.” “Real courage,” Roberts bristled in a margin note, “would be to read the Constitution as it should be, not kowtow to the Tribes, Lewises, and Brinks!”
Roberts also struck a warrior's pose in the deeper battle over whether court stripping is constitutional. At the request of then-Solicitor General Kenneth Starr, Roberts sailed into these winds with a 27-page memo marshaling the legal arguments supporting his margin jottings. The Constitution's exceptions clause, he argued, gives Congress license to tailor the Supreme Court's appellate jurisdiction to its whims. When Olson had surveyed legal authorities on this question, he counted four professors who agreed with Roberts' position, compared with 35 who argued that it would be unconstitutional. Roberts lost; two years later, as a lawyer in the White House counsel's office, he was still miffed, complaining that the Justice Department had decided that the Constitution “did not mean what it said.”
So is Roberts “Antonin Scalia with a Washington Establishment smile,” as E.J. Dionne puts it?” Maybe; maybe not. There are pieces of the record that belie the image of a self-hating judge working to dismantle the court that he would lead. As far back as 1985, Roberts went to great pains to emphasize that he believed court stripping was “bad policy,” even in his early jousting with Olson. When Senator Ron Wyden asked about the law seeking to rig Terri Schiavo's end-of-life litigation, Roberts reportedly told him that he was “concerned with judicial independence.”
The public's historic confidence in the Supreme Court, which has endured despite growing disenchantment with virtually every other American institution, may be slipping. The decline is especially pronounced among conservative evangelicals, who regularly hear judges labeled as “arrogant” or “tyrants” because of a handful of the hundreds of thousands of decisions courts hand down each year. It would be useful if Judge Roberts, who epitomizes much of establishment conservatism, and who will represent the Court if he is confirmed, were given an opportunity to rebut the radicals on the right.
Of course, the courts survived the last great spasm of attacks, after Brown v. Board of Education outlawed school segregation. But the new bench-bashers won't be giving up their lucrative gig anytime soon. Judges like John Roberts are the sleeping giants in the growing war over America's courts. Their audience is waiting: Opinion surveys show that judges are trusted more than other spokespersons on legal issues. Judges can also use their opinions to educate the public, like Judge Stanley Birch of the 11th U.S. Circuit Court of Appeals, who wrote in a Schiavo appeal that “the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people -- our Constitution.”
Indeed, a Justice Roberts would do well to emulate his former boss, the late Chief Justice William Rehnquist, who spoke out against court-stripping and impeachment threats. Most of his colleagues have recently been doing the same. For senators who care about the Constitution, there's nothing overly ironic or postmodern about trying to find out if jurists will defend their own courts. Would a Chief Justice Roberts finish the transition from Young Turk to elder statesman? It never hurts to ask. His leadership is needed.
Bert Brandenburg is the executive director of the Justice at Stake Campaign, a nonpartisan national campaign of more than 40 partners. The positions and policies of all campaign partners are their own, and do not necessarily reflect those of other partners.
