Judge Roberts on Trial (NY Review of Books)

http://www.nybooks.com/articles/18330

Judge Roberts on Trial
By Ronald Dworkin

1...Almost every recorded political statement John Roberts has made throughout his life, from adolescence to his nomination as chief justice, suggests that he has strong conservative political convictions and instincts, and many people naturally fear that he will use his great power on the Supreme Court in the service of his politics. He promised that he would not, but the Senate Judiciary Committee should have been more effective than it was in testing that promise. In fact it failed dramatically in its responsibility to do so.

In his public career Roberts has opposed improving protection for the voting rights of minorities; held that it would be constitutional for Congress to strip the federal courts of their powers to supervise racial integration; denigrated efforts by a group of women legislators to reduce gender inequality in the workplace; referred to the right of privacy as "so-called"; signed a brief advising the Supreme Court to overrule Roe v. Wade; and described a Supreme Court decision outlawing a moment of silence that might be used for prayer in schools as "indefensible." (See William L. Taylor's recent article on Roberts's career in these pages.<1> http://www.nybooks.com/articles/18330#fn4 )<snip>

It would be nonsense to say that a judge who has a constitutional philosophy of the kind these examples illustrate has set aside all his own moral and political convictions to decide just in accordance with what the Constitution requires. He relies on his own convictions about the best conception of democracy and the role of the Constitution in creating that form of democracy in order to decide what the Constitution, properly understood, does require. But the crucial point is that these convictions about the character of democracy are independent of the more immediate and partisan policy preferences that lead a judge to vote for one party or the other or to favor one legislative scheme about some particular regulatory issue over another. It is the possibility of a constitutional philosophy of this sort—and only that possibility—that can give meaning to a Supreme Court justice's claim that he sets his own political preferences aside in deciding constitutional cases.

2...This (Robert's) more "pragmatic" approach, which lets a judge's sense of how the case should be decided govern the method of interpretation he uses to decide it, rather than the other way around, is the most open invitation possible to result-driven adjudication, that is, to a judge putting his own policy preferences into his decision rather than trying to filter them out. Of course Roberts is right that a constitutional philosophy should not be an academic straitjacket that makes the facts of particular cases and the practical consequences of a decision one way or the other irrelevant. But that means only that a decent philosophy must show how facts and consequences are relevant, not that no such philosophy is needed.<snip>

The danger is greater, in my view, that Roberts will join with the other conservative justices in extending the President's power to conduct his war against terrorism without regard for either international law or the traditional rights of prisoners. During the hearings he insisted that the Bill of Rights remains in full force during a war, and he seemed to reject Chief Justice Rehnquist's famous comment that though the laws are not silent in times of war they speak in a quieter voice. Yet he emphasized the president's powers as commander in chief and suggested, when Senator Patrick Leahy asked him whether the president had the power to order the torture of prisoners, that that depended on whether Congress was "supportive" of the president's action.<snip>

http://www.pbs.org/wnet/journaleditorialreport/091605/leadstory.html