Disconnect Part 2.

I see that in the hearings Charles Fried makes a point similar to mine. August company for me, less so for him. The professors complaining about Judge Roberts continue to fall into the same trap. The notion that the courts should be a beacon for some particular substantive agenda rather than simply for scrupulous adherence to the law and the Constitution is troubling, to say the least.

Regarding one of the comments suggesting that I assume there are correct legal answers, I would say that I do not assume it, I assert it as correct and am happy to defend that assertion as to most cases. Even as to the particularly difficult cases that cannot be answered by text, history, and other relatively concrete factors, there are still numerous rules of thumb or cannons of construction that guide a judge in resolving such uncertainty. To the extent such cannons are part of the established precedents, they too help reach the "correct" answer even absent certainty from text or history.

If what people are concerned about is Judge Roberts's tendencies in areas where there are still ambiguities after faithful application of text, history, and precedent, then I think he has laid that out pretty well. He would be modest and respectful of the authority of the other branches and in that respect is likely to uphold government action in such cases, for good or ill. A narrow interpretation of constitutional limits on federal power thus should please liberals who favor expansive federal power. But that same reserve might well mean that he will not offer exansive interetations of other aspect of the Constitution as well — those restricting government power relative to individual liberties. Once again, that is the same modest view, but with different potential policy outcomes. Either way, the tendency is not based on substantive social policy considerations, but on judicial considerations and balance-of-power concerns.

It is the social policy that critics and Senators keep harping on, not the judicial policy issues that might well have an influence on the "correct" answer. As to the judicial policy questions, if you want a justice who will be respectful and deferential to the political branches you cannot also insist on a judge who will be a champion of individuals asserting their potential, yet ambiguous, constitutional rights against those very political branches. The fight over an aggressive vesus a deferential approach to enforcing the Constitution is a valuable one to have and one that Roberts has indeed weighed in on. (I might well take a different view on that issue than he does, but his approach is certainly the paradigm of judicial restraint, which seems to get lip service from both sides.) The question of whether he will impose his social policy preferences on areas of ambiguity strikes me as precisely the wrong view of the courts and I, for one, would hope that jurists would studiously resist such an approach. Judge Roberts has been definitive about that point as well.

Dr. Weevil (mail) (www):
I think you mean "canons of construction". Double-n cannons are used for destruction, not construction.
9.15.2005 7:11pm
Bill Dyer (mail) (www):
The senators, and the segments of the American public who identify with particular interest groups, want a Justice who'll vote for "their side" no matter what.

The rest of the American public, including anyone who values fairness and justice, want a Justice who'll be fair and just under the rule of law without regard to whose side wins.

It's abundantly clear who's going to be pleased by Judge Roberts' confirmation. What's odd is that that ought to include folks from all sides of the political spectrum, so long as they value fairness and justice over "always winning."

"Promise me that my ox won't be gored, and I'll give you my confirmation vote." That's a damned poor way to try to fulfill one's advice and consent obligation. Bully for Judge Roberts for resisting the temptation to bargain with the craven sort of pandering senators who're proposing such deals.
9.15.2005 7:19pm
I would like to suggest that our extreme reluctance to amend the Constitution lies at the heart of the problem. Consider "the switch in time that saved nine." FDR proposed packing the Court with Justices who would agree with him, rather than amending the Constitution to unambiguously permit the New Deal. This approach has become so commonplace that now people on both sides of the aisle expect to implement their pet policy goals via judicial rather than legislative acts.
9.15.2005 7:44pm
Jim Rhoads (mail):

Thank you for a well-expressed post on a very important subject. Bill (Beldar) Dyer also punctuates the point. As crusty old trial lawyers, he and I know what we want in a judge. Someone who has no agenda other than to get it as right as s/he can. It is clear to me that Justice Roberts is that kind of person. Unlike some, he not only tries to do this, but has the intelligence, skill, talent, discipline and work ethic to do it.

I predict from what I have seen these past four days that he will be a worthy successor to past giants of the bench.
9.15.2005 8:13pm
JoeSlater (mail):
I'm skeptical of the idea that in many of the cases that actually get up to the Supreme Court there is one clearly correct answer and that's it. A decent number of Supreme Court cases are either based on Circuit splits or include at least one dissent (often joined by more than one Justice). So, to believe that there is a "correct" answer if only we used a few basic tools of interpretation correctly, is to believe that lots and lots of appeals court and Supreme Court judges are (and have always been) either unskilled or uncaring about the obligations of their job (or both). I'm not willing to go that far.

Further, I teach statutory and common law subjects, and in a significant number of "hard/close cases" I wouldn't argue one holding was "correct" in the sense that 2+2 =4 is correct. I don't see why Constitutional law would be easier.

Finally, I'll take a page from Akhil Amar's book (article?) and say a lot of the angst over Supreme Court appointments would be eliminated if we set time limits (10 years?) for their appointments. But that's another issue.
9.15.2005 8:16pm
I resist the naive notion that most Americans simply want a Justice who will be fair and consider both sides of an issue. To many Americans, the major policy issues of the day have but one correct resolution, and they want a judge who will rule their way.

Corruption of the judicial concept? Of course. But we seem to have achieved a strange asymmetry in the nomination process, where a president is permitted to nominate a judge based upon a belief that certain substantive results will be achieved, but a senator is not permitted to deny confirmation on the same basis.
9.15.2005 8:51pm
Jim Rhoads (mail):
I didn't say most Americans feel the way I do. I said as a trial lawyer, who handles cases on all sides of the political spectrum, I would rather have judges who call them down the middle. That's not naive, it is survival. As it is now, we always try to read the tea leaves on our judges. Even those that have biases will try to be fair to a greater or lesser extent, but we have to try the case to the judge assigned.

As a political matter, there is no question that the bottom line is votes. But I think it is unrealistic for the minority party in the Senate to persuade the President to nominate judicial candidates who will rule the way their consituents want them to.

I don't think the President will have any problem whatever getting someone through the Senate who sees things the way generally the way he does given the 55-45 split. Senators can deny confirmation on any basis they want. They just have to justify it to their constituents the next election.
9.15.2005 9:13pm
Goober (mail):
"Correct" was an unfortunate term. Other commenters and now the original post author have now seized on that, to the exclusion of the rest of the sentence. So let me reemphasize the sole in "sole correct" theory of the Constitution. If textualism is the only correct theory of the Constitution, is originalism not only incorrect, but as incorrect as democratic experimentalism? I don't think

Second, let me add that there was a whole 'nother clause there. If you don't mind me putting it to you directly:

Do you think that the correctness of a theory of interpreting the Constitution is functionally independent from the results of that theory?

I'm glad you're a Dworkinian and believe there are "correct" answers to legal questions. But I hadn't really questioned that. What I wanted to know was, and is, whether a so-called correct theory of constitutionalism, if it resulted in Plessy v. Ferguson being upheld instead of struck down, would somehow become less correct for you, or whether its correctness drifts on forever, irrespective of practical consequences.
9.15.2005 9:18pm
Goober (mail):
My first paragraph kind of trails off there, doesn't it? Here:

I don't think that anyone, no matter how fierce their commitments to the 'right answers' that Ronald Dworkin always insisted were really there, believes in a duality of correct- / incorrectness to theories of interpreting ambiguous sources. Holmes didn't, he and identified a range of plausible interpretations of the Constitution where judges should uphold laws; only if no reasonable reading of the Constitution would sustain a law should the Court strike it down. I shan't challenge you to justify that you're smarter than Holmes, but it should give us pause.
9.15.2005 9:23pm
DJ (mail):
I agree with your analysis, Professor. I do not believe it is undermined at all by your spelling the word "canon" as if it's a weapon. Add a tilde instead, and get a canyon!
9.15.2005 9:59pm
frank cross (mail):
The trouble is, we know that justices throughout recent history have been consistently liberal or conservative. It strains credulity to suggest that their rulings have not been substantially influenced by their personal ideology and likewise strains credulity to believe that Justice Rogers will not be likewise affected.

Of course, the hearings are too reductionist in failing to consider the law at all, only policy. But they reflect a pretty undeniable truth -- that statistical evidence demonstrates that justice ideology is very important to decisions. I favor the elevation of Roberts, though he will be influenced by his conservatism, he will be thoughtful and anything but kneejerk, I believe. I suspect he will find a not radical path to his conservative results, and I think that's fine. But the Senators' probing of his ideology is reasonable.
9.15.2005 10:04pm
Goober (mail):
"Canyons of construction" sounds awfully formalist, don't you think? I just envision some SJC justice opining on the dangers of straying from the clear rule laid down in years past, lest one construe until they reach the dark and treacherous wilderness....
9.15.2005 10:44pm
B Polhemus (mail):
I'll go a bit further. It REALLY galls me that so many ASSUMPTIONS by the Left go unchallenged. For example, they are incensed that (according to the SpecIntGrp talking points) Roberts seeme to say that the EEOC is "unAmerican."

Well, I realize that Roberts needed to correct Kennedy on that, but the fact is organizations like EEOC ARE UNAMERICAN!!!

The ONLY thing I've heard--and I've not followed all of it, just the snippets on such talk shows as I've been able to hear--that I really liked was when Roberts stated that "he's not for the little guy OR for the Big Corporations; he's for the CONSTITUTION!!!!"

That's tellin' 'em, John!
9.15.2005 10:55pm
That's tellin' 'em, John!
Sadly, that didn't tell them. Durbin leaned forward in his chair listening to the answer (something I guess we should give him credit for, since it seemed to be beyond the abilities of Sens. Biden or Schumer) with a look of disapproval and reproof on his face that suggested Roberts had just suggested that they all take a brak from this stuffy nonsense to go catch a pole-dancing show. As Althouse very aptly put it, the attitude of the Democratic Senators has been, almost throughout, "We keep trying to talk about feelings and all he wants to talk about is — gasp! — law! How can we trust someone like that to be a judge?"
9.15.2005 11:12pm
Adam White:
I would note that an equally disturbing example of the duplicity of so many of the Senators, especially Schumer, Specter, Feinstein, and several others, is their simultaneous (1) insistence that Judge Roberts should defer to the national legislature, alongside their (2) abhorrence that Judge Roberts will not rush more quickly to override the decisions of the State legislatures.

Of course, given the Tenth Amendment, if anything the degrees deference to the legislatures should be reversed.
9.16.2005 12:50am
John S (mail):
I doubt many Republicans are big fans of federalism anymore now that they have the federal levers of power. Specter made the biggest beef about SCOTUS striking down their legislation.

Federalism is the best outlet now for progressives, something they'll realize sooner or later.
9.16.2005 1:09am
Robert Schwartz (mail):
OK, so here is an idea, spare us the posturing and the tears, skip the sham trial. Send the nomination straight to the floor and get it over with. Roberts will be confirmed 55-45 on a straight party line vote and the rest of the country can back to their favorite soap operas.
9.16.2005 1:25am
"I doubt many Republicans are big fans of federalism anymore now that they have the federal levers of power. Specter made the biggest beef about SCOTUS striking down their legislation."

Yes, and as we all know Spectre is a RINO the quintessential Republican.
9.16.2005 2:16am
SimonD (www):
I would note that an equally disturbing example of the duplicity of so many of the Senators, especially Schumer, Specter, Feinstein, and several others, is their simultaneous (1) insistence that Judge Roberts should defer to the national legislature
Oh, don't forget the most absurd part, I think this came from Leahy: the Court must defer to every whim of Congress, but it must tightly bind upon the executive branch, which has made itself much more powerful than the constitution ever contemplated.

Which is true, but the irony and absurdity seems lost on a man who doesn't seem to understand that a) he's basically saying "let me do anything I like, but keep close tabs on this guy", and b) while it's true that the President has indeed accreted vast extraconstitutional powers, SO HAS CONGRESS! The President has managed to achieve this because Congress has had little or no inclination to guard its own powers and perogatives, and the Congress has managed to achieve this because the Supreme Court has been broadly deferential to it for so long that I think most legislators genuinely do believe that Congress has the power to legislate on any subject it likes. It is due for a rude awakening, not merely the brief stir produced by Lopez. Perhaps then, it will start doing its job and take back some of the power the President has stripped from it.
9.16.2005 1:23pm