John Roberts was a surprise because he was far better than I expected from George Bush.
Roberts seems to be, unlike most of the other judges floated by the White House as potential nominees, a legal technician rather than a legal ideologue, a lawyer of rare skill and experience. Roberts edited the Law Review at Harvard, clerked for Judge Friendly on the United States Court of Appeals in New York and Justice Rehnquist on the Supreme Court, has been a consummate advocate in and out of public service, and has been a workmanlike judge on the United States Court of Appeals for the District of Columbia. He is a textbook example of the kind of judge Presidents should
put on the Supreme Court.
Judge Roberts, absent an unexpected surprise like the pot smoking admission that tanked Judge Douglas Ginsburg years ago – and Ginsburg, another textbook example, would have been an excellent
Justice, as all of us who knew him in law school will tell you -- will be confirmed.
And he should be, because Roberts is not, unlike the other potential nominees floated by the White House, a vocal "movement conservative", a man with an axe to grind and the lack of restraint to grind it. Instead, Roberts shows promise of being a legal technocrat in the tradition of Benjamin Cardozo, Felix Frankfurter, John Harlan or Hugo Black, men whose dedication to the law outweighed their political views.
And that is why I am surprised by his nomination. I did not expect George Bush to nominate a man of high quality to the Court, given his own limited vision and the demands by social conservatives that the nomination be payback for Republican support by the Religious Right. I expected a man who believed that the Republican Platform and the Constitution were woven from a single thread, and Roberts shows no sign of mistaking the one for the other.
Republicans, like circus elephants Jack Kennedy once likened them to, dutifully grabbed on to each other's tails and began performing tricks for the crowd, praising Roberts with accolades usually reserved for dead grandparents. Even James Dobson, Jerry Falwell and Pat Robertson, who have every reason to be furious at this point, have "made nice" for Roberts.
But, as everyone in the United States is now aware, we know very little about Roberts' judicial philosophy. Roberts is an unknown quantity, a man has left few clues to his judicial thinking in his wake over the years. He is likely to surprise us all before he is done.
And that is important, because Roberts will likely serve for several decades, and the Supreme Court has become, in the last several decades, the focal point for resolution of cultural issues that have largely defied political consensus. The Court itself, in recent years, has been dominated by a moderate consensus that has turned, again and again, on the views of Justice O'Connor, who Roberts will replace.
The paper trail that Roberts did leave behind – at least the paper trail that has surfaced so far, and it looks like there might well be a fight over getting confidential memoranda written by Roberts while he was at Justice – suggests to me that Roberts believes in judicial restraint, respects precedent, and will be unlikely to rule on the basis of his political views, whatever they may be. He does not seem to be a "true believer" in the sense that Justice Thomas or Justice Scalia are, ready and willing to ignore precedent in order to further their political agendas.
In a recent opinion involving the drug industry, Roberts broke with radical conservatives on the court, pointedly reminding them that courts are wise "to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case” – words quoted from Felix Frankfurter.
But I can't predict how Roberts will deal with the issues of gay rights as the cases percolate through the system to the Supreme Court in the next two decades.
I believe that the issue of gay equality will be a critical element of the Court's agenda over the next two decades, in the way that the Civil Rights issue was a critical element of the Court's agenda during the 1960's and 1970's, and abortion was during the 1980's and 1990's. And at stake are basic questions about the nature of our society and our Constitution, as I've noted in other posts over the last six months.
We might get an indication of how Roberts will approach gay and lesbian equality during the next term. As far as I know, there is only one case on the Court's docket next year that touches on gay and lesbian issues, and that case does not directly concern gay and lesbian equality. But we might learn something of Roberts' approach from the questions he asks and the opinion in which he joins.
The case involves, oddly, law school recruiting. The AALS, which is the accrediting body for law schools in the United States, excludes from its membership any law school that does not ban law firms which refuse to hire openly gay or lesbian lawyers from interviewing at the school. The school policies clash with recruiting by the military, which, of course, hires gay and lesbian lawyers but does not, under "Don't Ask; Don't Tell", allow gay and lesbian lawyers to serve openly. In an attempt to force law schools to permit military recruiters to interview prospective lawyers, social conservatives in Congress passed a law barring federal funding of any law school that does not permit the military to recruit lawyers. The question before the Court is whether the law – the so-called Solomon Amendment – passes muster under the Constitution. .
The Solomon Amendment case is not a clean case – the case involves issues of national defense, free association and other matters not directly involving gay and lesbian equality – and does not bear directly on gay and lesbian equality.
But other cases, now percolating through the federal court system, will present themselves in the next two decades – cases involving, specifically, same-sex marriage.
In May, a federal district judge in Nebraska struck down a recent amendment to that state’s constitution which banned gay marriage and civil unions; an appeal of that ruling is pending. The Court will almost certainly be asked to decide whether gay marriages in Massachusetts must be honored by other states, and my guess is that a case involving this question will be on the docket within two or three years.
My guess is that the Court will rule in favor of the government, because most of the Court has a history of deferring to the needs of the military. Roberts’s history of judicial restraint suggests to me that he will come down in favor of the military, as well, because he has demonstrated a reluctance to invalidate legislative actions in cases he has decided on the District of Columbia court. But I will be interested in the questions he asks and the reasoning behind his decision, if he joins in an opinion.
Judicial restraint – and judicial restraint appears to be foundational to Roberts' judicial philosophy – is likely, in the long run, to disappoint social conservatives, because social conservatives have tried to use the courts to push their agenda. Judicial activism of the "movement conservative" variety, a willingness to ignore precedent and overturn established law, is critical to the success of their agenda. Roberts, unlike Justice Scalia and Justice Thomas, does not appear to be on board with that agenda. Social conservatives may come to rue the day.