Comments on Who is John Roberts?
I published the post below without activating comments, which I discover you cannot do after the fact. So I am doing so here for comments on that post.

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My reaction to Prof. Barnett's post was mostly sadness. The thing is, there are two different types of discussions about judicial philosophy: (1) the academic type engaged in by law professors and Supreme Court junkies, like myself; and (2) the political type in which concepts like "originalist" and "strict constructionist" are just buzzwords. And what makes me sad is that I think the former is a very valuable issue, and yet, all that seems to matter in the end is the latter.

Let's assume Roberts goes through his confirmation hearings and ducks every question (which, I'm told, is basically how his hearing went in 2003). Will a single Republican vote against him because they're uncomfortable with the ambiguity of his judicial philosophy? Hardly. Will a single Democrat care about his theory of jurisprudence, as opposed to where he stands on the Commerce Clause, abortion, etc.? Doubtful.

I already have conservative friends telling me how great it is that Roberts is a "strict constructionist," one of those good judges who doesn't "legislate from the bench." But I wonder how they know. I realize Bush made a campaign promise to nominate people in that vein, but just saying it doesn't necessarily make it so. If Prof. Barnett says he can't discern any particular philosophy from Roberts' record, then I tend to suspect he's right, and that my conservative non-lawyer friends are wrong. But it's a shame to see deeply interesting questions of jurisprudence reduced to just another soundbite.
7.20.2005 4:31pm
NR (mail):
Thanks for opening comments on this thoughtful post. I have already posted this comment on two other threads, but I promise that (1) it is relevant here and (2) this is the last time I will post it:

I find this remark from Judge Roberts' COA confirmation hearings especially interesting:

I don't know if that's a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, "I'm an originalist, I'm a textualist, I'm a literalist or this or that." I just don't feel comfortable with any of those particular labels. One reason is that as the Constitution uses the term "inferior court judge," I'll be bound to follow the Supreme Court precedent regardless of what type of constructionist I, personally, might be. The other thing is, in my review over the years and looking at Supreme Court constitutional decisions, I don't necessarily think that it's the best approach to have an all-encompassing philosophy. The Supreme Court certainly doesn't. There are some areas where they apply what you might think of as a strict construction; there are other areas where they don't. And I don't accept the proposition that a strict constructionist is necessarily hostile to civil rights.

Apparently, not only does Judge Roberts not have a grand overarching interpretive theory for constitutional adjudication, he doesn't think it's a good idea to have one, either. How does this sit with all you originalists?
7.20.2005 4:33pm
David Kravitz (mail) (www):
Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars.

How hilarious that this and the rest of the post should come from a law professor. Can you honestly believe that being an academic is the best training for being a Supreme Court Justice? How about experience in the practical world of the law - wouldn't it be nice if judges knew something about that? Or how about experience in the legislative or executive branch - that might be useful too, mightn't it, since those folks might have a real-world sense of how the three branches actually interact, instead of an ivory-tower theory about how it "should" work? Come on, perfesser, don't take yourself so seriously.
7.20.2005 4:38pm
Justin (mail):
Just to refer to your previous post (feel free to delete if off topic), I'm saddened by your inference that arguments that one's "knowledge" of the originist (or textualist) position is formulated through policy preferences rather than actual impartial research is out of bounds, when conservatives consistently attempt to make the (incorrect) argument that it is only through textualism (and, in the case of the constitution itself, orignialism) that prevents people from substituting their policy preferences for the meaning of the Supreme Court.

Jonathan Adler is on to something. And your snippet misses the evidence he backs his case up with.
7.20.2005 5:09pm
R C Dean (mail):
How about experience in the practical world of the law - wouldn't it be nice if judges knew something about that?

Sure, but serving a client and deciding cases are two very different activities requiring very different skill sets.

Or how about experience in the legislative or executive branch - that might be useful too, mightn't it, since those folks might have a real-world sense of how the three branches actually interact, instead of an ivory-tower theory about how it "should" work?

Frankly, I see very little of what legislators do that would carry over to what a judge does. Besides, the purpose of a Supreme Court judge is to have a clear and defensible idea of how the three branches should interact (you can disparage it as "ivory-tower" if you want, but pejoratives rarely enlighten), and apply that idea in specific cases.

There is a great deal of overlap between appellate judging and law professoring, like it or not.
7.20.2005 5:22pm
Uh Oh:
I don't know who John Roberts is, but I doubt that he'll be confirmed now that these pictures have been made public...
7.20.2005 5:38pm
Those of us who are mere working lawyers sympathize far more with Judge Roberts skepticism of overarching judicial philosophies than Professor Barnett's frustration. In general, many of us would much prefer a judge without preconceived analytic frameworks other than a healthy respect for the separation of powers and a sense of humility when it comes to interpreting the law, be it the Constitution, a statute or the common law. Whether we agree with Judge Roberts' policy views, it would be refreshing to have a Justice who comes at a case without an agenda that does not necessarily relate to its merits.
7.20.2005 5:41pm
Bill Dyer (mail) (www):
I've trackbacked to Prof. Barnett's original post, but will also leave a link here to my long-winded response to it on my own blog. But I can't resist a couple of supplemental points here.

When I was a law clerk, I thought that being a law clerk was the only job that law school had really trained me for. When I was a young lawyer, I thought that too (i.e., that law school hadn't trained me very well to be a lawyer). With 25 years' perspective as a practicing lawyer, though, I'm considerably less impressed with what Mr. Dean references as the "overlap between appellate judging and law professoring," and considerably more respectful of the value of practice experience (especially of the sort and at the levels that Judge Roberts has been engaged in). I've known many trial and appellate judges who'd have made poor career scholars but were nevertheless excellent judges, and many law professors who were brilliant and articulate and breath-takingly foolish (to the point that they'd be a positive danger to the Republic if they were on the bench).

I don't know, but I have a very strong suspicion that the level of discourse within the private confines of the Office of Solicitor General is pretty high, and probably more tightly attuned to what's going on in the Court, than the discourse in your average law school. In fact, if I could pick one practicing lawyer job in the world, it would be as Solicitor General of the United States.
7.20.2005 5:44pm
Prof. Barnett's post was extremely thoughtful - one of the best analyses I've read so far. But reading the exerpt posted by NR, I am comfortable with Roberts' approach as well. To me, it seems best to have a mix of styles on the Court - some with overarching judicial philosophies, such as a Scalia or a Brennan, and some who take a more pragmatic view, as O'Connor did. This may not be satisfying to those like Prof. Barnett who are interested in pushing the intellectual envelope. But a Court filled with people like that might not work all that well. If Roberts turns out to be a pragmatist like O'Connor - only somewhat more conservative - I'd be perfectly happy.
7.20.2005 6:01pm
Observer (mail):
I agree with the facts of Randy's post, but want to discuss the obvious cause: the nasty partisan confirmation battles and character attacks that, not surprisingly, are leading to stealth appointments like Souter and now Roberts. We can't have our cake and eat it too, so what should the choice be?

Also, while I agree that staking out an interpretive position and defending it aganist other scholars can lead to a disciplined approach, I wonder how it compares to a sophisticated legal practice like Roberts has had. To be specific, when a scholar stakes out a strong position and defends it in articles against scholars who write counter-articles, do real citizens pay the price of adopting the scholars' views? I think that's rarely the case.

But when a practitioner stakes out a position, the practitioner is well aware that one side or the other, or sometimes both sides, will have to live with disappointing results. For example, I imagine that Randy's work on the Raisch case brought him a type of knowledge that one cannot get simply by writing articles for law review articles.

In other words, just as there is a disciplined knowledge that emerges from scholarly engagement, a disciplined knowledge emerges from handling real cases for real people. You learn that law isn't the clash of sterile ideas. Who's to say that a first hand look at the realities of legal process from the practitioner's view is less useful to judging?
7.20.2005 6:09pm
M. Simon (mail) (www):

Today I e-mailed my Senator, Dick Durbin, to ask Bush's pick for the Supreme Court, John Roberts, what his view of the Ninth Amendment is.

I think this ought to be a standard question for any future nominees.

I go into a bit more detail here.
7.20.2005 6:24pm
M. Simon (mail) (www):
7.20.2005 6:25pm
Cold Warrior:
Smart, studious, just a little bit political (paying his dues in the Reagan White House but generally avoiding the nastiness of electoral politics), perfect academic pedigree, and ...

... boring. Yes, boring.

His whole career is a microcosm of what's wrong with Washington. His life up to today is best described as "Supreme Court Justice in training." And unlike bygone days, that now involves becoming very wealthy as a partner in a major DC law firm.

We will now hear his steelworker's son story as often as John Edwards' millworker's son story. And the Democrats will cry, "irrelevant," as they try to beat back the monster they've created: if it is important to choose women and minorities for the Court because their life experiences will, in a deep way, inform their decisionmaking, how can it be irrelevant to focus on Roberts' upbringing?

No, we don't always need "idealogues." But we could use a deeper kind of diversity -- a diversity of educational experiences, of career experiences as a lawyer, including academics and even (gasp!) the occasional nominee who did not serve as a Supreme Court clerk. Prior experience as a clerk does suggest an understanding of the Court's traditions and fealty to its practices. But it also suggests an unwillingness to innovate -- not "innovation" in the interpretation of the law, but innovation in the Court's practices: what procedure does the Court follow in deciding whether to grant cert? Does the Court grant too many cert petitions? Too few? How do we decide what percentage is optimal? Is it best to bundle petitions together (e.g., Padilla and Hamdi) in an attempt to issue clear guidance all at once rather than engaging in piecemeal adjudication? Is it appropriate to fast-track certain petitions, particularly those involving important policies in the war on terror? Should the Court give greater/lesser (Chevron) deference to an administrative agency's construction of a statute? Is such analysis appropriate at the petition for cert stage? Is it appropriate for the Court to issue opinions with multiple concurrences and dissents, or to push the Court back to its earlier reliance on per curium opinions? Granted, many of these questions are left to the Chief Justice, but the Chief Justice will probably ascend from the ranks of the Associates.

And of course none of these questions will be asked by the Judiciary Committee. I find it odd that our Government obsesses over the need to "reinvent" itself, yet the Court seems to think that tradition dictates that the Court's business be conducted according to a 19th Century model. There seems to be a unexamined acceptance of the clubbiness of the bench as an unmitigated good; this is, unfortunately, John Roberts' chief selling point.
7.20.2005 6:52pm
Fern R (mail):
To those of you who support not having a judicial philosophy, an honest question for you: How do you propose a judge without a judicial philosophy should decide the case? If Judge Roberts was sitting on the Supreme Court when Kelo or Raich was decided, how should Judge Roberts decide what the Takings Clause or the Commerce Clause means and determine how it should be applied in each case? Is it Judge Robert's gut feeling that should determine his vote? His understanding of "justice?" Fairness? If so, whose idea of fairness?

I am at a total loss as to how a Judge could formulate a non-arbitrary way to determine how to vote without a judicial philosophy. One of the most valuable aspects of a society based on the rule of law is predictability. Afterall, that's one of the reasons corporations like to incorporate in Delaware: Delaware has a solid body of well settled law and Corporations know exactly what they are getting when they incorporate there. So, my point is, how can any of us lesser mortals know how we are supposed to interpret the law (and then abide by that interpretation) when Supreme Court Justices rely on something as nebulous as how they are feeling that morning or what they had for breakfast?
7.20.2005 7:24pm
Cold Warrior:
A thought just occurred to me:

John Roberts is the Republican Stephen Breyer:

-- born to a family of traditional values and modest means (although Breyer's Jewish family seems to have been a bit better off than Roberts' Christian family)

-- Stanford/Harvard; Harvard/Harvard

-- clerked for Goldberg; clerked for Rehnquist

-- worked at DOJ (antitrust); worked at DOJ (SG)

-- payed his Democratic political dues by working for Watergate special prosecutor and Democrat-controlled Judiciary Committee; paid his Republican dues by working for Reagan White House

-- amiable and engaging personalities, but neither exudes any particular spark

-- easily confirmed in 1994; will be easily confirmed in 2005.

The only real difference: in accord with the modern trend, Roberts parlayed his connections and intelligence into a lucrative private sector job, while Breyer moved between academia and government service. (Of course, Breyer could more easily afford to do so, having married well.)

This is the new model Supreme Court nominee. No controversial academics (Breyer's law and economics studies never touched the controversial ground of a Posner). No agitprop public interest litigators (Ginsburg or Marshall). No constitutional theorists. No sharp-tongued un-whitebreaded ethnics (Scalia). No minorities who might harbor just a bit of anger (Thomas). Nobody too "regional" (best to avoid the Texas twang of a Gonzalez or one of the female candidates), lest your President be accused of regional bias. Pure Washington types, these. And most of all, nobody who's ever made the mistake of speaking his or her mind in public on the major debates that inform our time.

I give you the spelling bee champions of the judiciary, brothers Breyer and Roberts.
7.20.2005 7:58pm
If Roberts is another Kennedy, O'Connor, or Souter, then the Republican Party is going to begin to unravel.
7.20.2005 8:13pm
Wince and Nod (mail) (www):
Speaking as a mere citizen, I want the government to follow the law. Thus, judicial philosophy matters a lot to me. If we apply the "living document" theory to the Constitution, why not apply it to all legal documents, including statutes and contracts? And if we did that, wouldn't Justices be oligarchs? What are the limits on Congressional power? Those powers do seem to have gotten broader over time.

And I get particularly unhappy about the Court effectively removing various clauses from the Constitution. Thus, I would not be happy with the originalism of Bork, since he can't figure out a way to use the Ninth. And I'm not happy with the pragmatists who seem to believe regulation of interstate Commerce confers something very close to the police power of the states.

I'd like to see a few post-facto Amendments to bring our Constitutional practice in line with our Constitutional text, and then originalism from then on.

There are regular joes, like me and Mrs. du Toit, who want the Constitution followed, and who have noticed the same things Randy has. It isn't all about results - except the result of following the law.

It's supposed to be the people's Constitution. We the people should be able to understand and follow it - stare decisis is not my highest priority. At the same time - and here is where I bow to pragmatists - people have been treating bad decisions like Wickard as law for a long time, and they would be rightfully upset if the many popular laws which I could argue should be overturned, were overturned. That's why I want those Amendments passed.

Let's argue this out in the public eye, as the original ratifiers did. I think the people of this country are up to the task. And that's the true shame about how the Senate and the press treat the public. I believe we can understand theories of jurisprudence and how principled judges behave - and how easy it is for judges to fail in applying those principles. This discussion is very similar to the discussion about how to interpret scripture, which means that many more folks understand the principles than you might expect.

7.20.2005 8:31pm
Stephen M (Ethesis) (mail) (www):
Of course, he should not be confirmed. He should not be confirmed because on a range of issues the U.S. Supreme Court is unavoidably a super-legislature, and one should not vote to confirm someone whose moral and political views are, on many of these issues, likely to be depraved and repellent. (If we had meaningful confirmation hearings, we would find out what those moral and political views actually are in some detail. Recall the remarks of Judge Posner.) But this honest discussion will not be had in America in the year 2005, so there is no point in dwelling on it.

That is what I got from short description

Anyone have an idea of what about Roberts Professor Leiter would conclude "likely to be depraved and repellent"?

I'm wondering if there is something there I have missed.

7.20.2005 9:28pm
Dan Simon (www):
In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy.....But with someone like Judge McConnell we would have known what we were getting, for better or worse. With Judge Roberts, we can only sit and wait...and hope for the best.

I gather, then, Prof. Barnett, that you'd prefer, say, Ronald Dworkin or Lawrence Tribe on the court, rather than Roberts--right? After all, both of them have certainly been through the "ordeal" you cherish, carefully thinking through their judicial philosophies and subjecting them to the scrutiny of their peers. And we'd certainly have "known what we were getting" with each one.

It would be cravenly hypocritical to argue that Roberts is insufficiently tempered by the fires of academic debate, when what you really mean is that you fear that those fires may not have forged in him a judicial philosophy of which you happen to approve. And we know you're not that kind of hypocrite. After all, you thought it a "pretty serious insult" to accuse someone of being "willing to read their own ideological preferences into ambiguous constitutional text". How much more egregious, then, to read one's own ideological preferences into the evaluation of an ambiguous professional career! No, I cannot imagine you doing such a thing. I therefore look forward to reading your battle cry, "better Tribe than Roberts!", in your next blog posting on the subject.
7.20.2005 9:42pm
Robert Schwartz (mail):
every thing I have found out over the last few hours (some of it from people in a position to know) makes me think that Roberts will be a very conservative voice on the court, particularly on issues like abortion, gay marriage, and religion. This makes me happy although it will make some of you unhappy. I do not know whether his handlers will let him answer questions on philosophy, although I would think that there is a great deal of merit in doing so, no matter how apoplectic Schumer gets.
7.20.2005 9:48pm
just me (mail):
Who is John Roberts?

Isn't it obvious - he is the Dread Justice Roberts, successor to the Dread Pirate Roberts. When he is ready to retire, he will pass on his robe to someone else, who will take his name as Justice Roberts, and none of us will be the wiser.

And Chuck Schumer is a rodent of unusual size.
7.20.2005 9:53pm
It would be nice if a sitting justice would actually write opinions that us practicing lawyers can use when advising clients - how about a moratorium on "balancing tests" and instead some bright lines.

As much as some overarching philosphy might be nice, as I get older I have more and more sympathy with a pragmatic approach to life and the law. How many of us can really define pr0nogra[phy until we have seen the object in question? I have great respect for J. Thomas, but he does seem rather a rare bird these days.

I rather suspect, based on admittedly little information, that Judge Roberts will be the perfect Chamber of Commerce candidate - mildly conservative on social issues, slightly sceptical of government regulations, and not the least troubled by Kelo. Oh I do hope I am wrong!
7.20.2005 10:15pm
Stephen M (Ethesis) (mail) (www):
isn't it obvious - he is the Dread Justice Roberts, successor to the Dread Pirate Roberts. When he is ready to retire, he will pass on his robe to someone else, who will take his name as Justice Roberts, and none of us will be the wiser.

That was cute, though I had logged back in to learn some more.

I find that I learn things from the few legal blogs I visit. I often disagree with Leiter, but some times he changes my mind. Here I often find intelligent or useful links and information. Sometimes I disagree here as well, sometimes my mind gets changed, and sometimes I get a good laugh.
7.20.2005 10:28pm
Gene Vilensky (www):
I think that the quote from Roberts' DC Circuit Confirmation Hearings indicates a rather welcome approach to decision-making on the Court.

I am a libertarian who is extremely sympathetic to Prof. Barnett's originalism. But there is also something to be said for a pragmatism of Judge Posner. It seems that Roberts' rejection of any particular interpretive philosophy is similar to Posner's belief that the toughest cases before the Courts require not just logical reasoning, historical perspective on precedent, original intent analysis, and textual analysis, but also understanding of the consequences of particular decisions (see in particular: ).

I would have wanted nothing more than a Posner nomination. I don't think that will ever happen, unfortunately. But I do think that Roberts, while reaching possibly different conclusions from those of Posner, would take more or less that very pragmatic approach.

As to issues which Prof. Barnett (and I) would care about, I would think that a pragmatist approach that looks at the practical consequences of a decision would vote in favor of Kelo and possibly even Raich (small consolation given that this nominee is a replacement for O'Connor who was on the good side in both cases). I think that the practical consequences of both decisions are absolutely nuts, so I would imagine a possibly sympathetic ear in Roberts.
7.21.2005 12:42am
Gene Vilensky (www):
(see in particular is supposed to be Posner's Interview with Howard Bashman
7.21.2005 12:43am
Gene Vilensky (www):
Sorry again... Interview with Bashman
7.21.2005 12:44am
Rough Justice (mail):
"I mean truly best qualified as measured by college and law school degrees (both Harvard), grades (summa, Harvard; Magna, Harvard Law School), clerkships (Friendly, Rehquist), post law school job (Chief Deputy SG), big prestigious law firm job."

That is elitist snobbery, Randy. I don't care if he went to Poduck J.C. Harvard and Yale don't impress me a lick. Neither do the money and connections required to attend there mean squat to me. This is America, Randy where the little guy can become President of the U.S. - equality of oportunity and all that jazz, or don't you really believe that. I hate this blog and its practice of vile censorship. That nauseating anti-free speech message that you posted below tells me all I need to know about you sorry people.
7.21.2005 4:54am
Jake (mail):

Would he find any limits on the enumerated powers of Congress? We don't know.

This seems to be an exaggeration given Roberts dissent in the DC Circuit's rejection of hearing Rancho Viejo v Norton Gale en banc. He wrote

Roberts, Circuit Judge, dissenting from denial of rehear- ing en banc: The panel's opinion in effect asks whether the challenged regulation substantially affects interstate com- merce, rather than whether the activity being regulated does so. Thus, the panel sustains the application of the Act in this case because Rancho Viejo's commercial development consti- tutes interstate commerce and the regulation impinges on that development, not because the incidental taking of arroyo toads can be said to be interstate commerce. See Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1071-73.

Such an approach seems inconsistent with the Supreme Court's holdings in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000). The Court in those cases upheld facial Commerce Clause challenges to legislation prohibiting the possession of firearms in school zones and violence against women.....
The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States."

It would seem that Roberts put emphasis on the (seeming) exceptions - Morrison and Lopez - rather than the body of SCOTUS precedent. This (to me) suggests a belief in a greater limitation of the Commerce Clause to an extent not reflected by most of the precedents. This view is supported by his confirmation testimony:

[S]tarting with McCullough v. Maryland, Chief Justice Marshall gave a very broad and expansive reading to the powers of the Federal Government and explained that—and I don't remember the exact quote—but if the ends be legitimate, then any means chosen to achieve them are within the power of the Federal Government, and cases interpreting that, throughout the years, have come down. Certainly, by the time Lopez was decided, many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren't going to be thrown out that way. Lopez certainly breathed new life into the Commerce Clause. I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It's not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate? That's a very important factor. It wasn't present in Lopez at all. I think the members of Congress had heard the same thing I had heard in law school, that this is an important—and they hadn't gone through the process of establishing a record in that case.

and to a lesser extent

[S]imply because you have a problem that needs addressing, it's not necessarily the case that Federal legislation is the best way to address it...[T]he constitutional limitation doesn't turn on whether it's a good idea. There is not a ''good idea'' clause in the Constitution. It can be a bad idea, but certainly still satisfy the constitutional requirements.

Now, IANAL - just a hobbyist. But it would seem that Roberts position on the Commerce Clause is at least partially expressed. (He also seems to have no problem with the Spending Powers as currently interpretted).

As I skim through his previous responses, I find this throw-away line that could actually become important in the meta-debate.

Mr. ROBERTS. But I am happy to be scrutinized under whateverstandard the Committee or the Senate wishes to apply.
7.21.2005 5:39am
just me (mail):
A-ha! I told you that the Dread Justice Roberts would be replaced by a series of Justices all going by "Justice Roberts" -- and it turns out, that as Howard notes, this seat was once held by Justice Owen Roberts! And after Owen Roberts came Harold Burton -- who, I believe, cleverly disguised his Roberts name because the world was not yet ready -- haROld BURTon. The chain then went underground during the Stewart-O'Connor interregnum (or is it interrobertum? or Courtus Interrobertus?), but it is back now.
7.23.2005 5:24am