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Roberts' First Term and the Meaning of "Modest" Judging:
In today's Los Angeles Times, David Savage suggests that Chief Justice Roberts did not remain true to his modest vision of the courts in two cases last Term, Rapanos v. United States and Gonzales v. Oregon. Savage writes:
One year ago, John G. Roberts Jr., at the time President Bush's nominee to be the chief justice of the United States, told senators that he aspired to be like an umpire, enforcing the rules of the game, not making them.

"My job is to call the balls and strikes, and not to pitch or bat," he said. "It is a limited role…. Nobody ever went to a ballgame to see the umpire."

Roberts suggested that modesty, humility and stability in the law were the goals of his umpire credo. Not to make law, like the activist judges he disdained, but merely to interpret existing laws fairly, mindful of legislative intent and the requirements of the Constitution. And during much of his first year, he did just that.

But in several cases, he behaved differently, joining Justice Antonin Scalia in dissents that would have rolled back a major environmental law and undercut states' traditional authority over the practice of medicine. Neither would have qualified as a modest act.

* * *

In 1994 and again in 1997, Oregon's voters approved the Death with Dignity Act, which allowed terminally ill people to obtain a dose of lethal medication from a doctor to hasten death. Two physicians had to certify that a person's illness was incurable and that they had, at most, several months to live. * * *

. . . [W]hen Bush made Ashcroft his attorney general in 2001, Ashcroft issued an order saying that doctors in Oregon could lose their licenses to prescribe medication if they gave dying patients lethal drugs. Oregon's governor, doctors and some patients sued, and a federal judge and the U.S. Court of Appeals blocked Ashcroft's order.

The case of Gonzales vs. Oregon came before the Supreme Court in Roberts' first month as chief justice, and a 6-3 majority ruled for Oregon in January. But Roberts joined Scalia's dissent, as did Justice Clarence Thomas. The three said the use of legal drugs for ending a life was not a "legitimate medical purpose" and could be banned by the attorney general.

If Roberts' side had been in the majority, it would have voided the voice of Oregon's voters, taken away the state's traditional power to regulate the practice of medicine and upheld a single federal officer's new interpretation of a long-standing federal statute that had not been endorsed by Congress.

In the other case, Roberts supported a sharp pullback in the Clean Water Act of 1972, which makes it illegal to discharge pollutants into the "navigable waters of the United States" without a permit. Because water flows downhill, the Environmental Protection Agency since the 1970s has said it has authority over all rivers, streams, channels, marshes and wetlands that may send water — and pollutants — to major lakes, rivers and bays.

But in Rapanos vs. U.S., Roberts joined Scalia, Thomas and Samuel Alito in calling for a new, sharp limit on the EPA's authority. Federal authority, they said, only applied to permanent and "continuous flowing" bodies of water, such as rivers and their main tributaries. This would have eliminated federal protection for most streams and wetlands in the interior of the nation and nearly all those in the West and Southwest because their stream beds are dry for part of the year.

For more than three decades, these federal regulations on wetlands and streams had stood, through Republican and Democratic administrations and through GOP- and Democratic-controlled Congresses. Yet, with one extra vote, the Roberts court would have rewritten the scope of the Clean Water Act in its first term — not the act of a modest Supreme Court.
  David Savage is one of the best Supreme Court reporters in the business, but I think his criticism misunderstands Roberts' confirmation hearing testimony. Roberts did not pledge that he would reach modest results: he pledged that he would do his best to follow the law. In a statutory case, the modest judge follows what Congress says, subject to preexisting rules of interpretation; he doesn't pick a substantive result that preserves the status quo and then manipulate the law to get there.

  The difference is important, I think. Consider an extreme example: If Congress passed a law that doubles the income tax, it wouldn't be "modest" for a judge to interpret the law so that it increases the income tax only 5% instead of doubling it. Sure, 5% is a very modest tax increase compared to a 100% tax increase, but for a modest judge that's a question for Congress and not the courts.

  To be clear, I think reasonable people can disagree on whether Roberts acted consistently with that modest role in Rapanos and Gonzales. Personally, I found Kennedy's majority opinion in Gonzales more persuasive than the Scalia dissent that Roberts joined. But if the question is Roberts' consistency, the test needs to be whether Roberts was following the law to get to his result, not whether he interpreted a law so that it had only a modest impact.

  Thanks to Howard for the link.
Heraclitus Strikes Back (mail):
While I agree with your analysis, part of Roberts' appeal, given that his nomination trailed in the wake of the Harriet Miers debacle, was his real-world experience as a litigator, including a vast history of appellate argument before the Supreme Court. Roberts was supposed to possess practical and pragmatic knowledge of how to sway moderate judges and obtain results with which everyone could agree. Senators picked up on this theme during his confirmation hearings and, crudely, in my view, asked Roberts to swear that he would increase the tally of unanimous opinions and opinions without copious concurrences and numerous dissents. He agreed that stability in the law is promoted when the Court speaks with one voice. Because many who participate in public discourse -- including the press -- view the Supreme Court in the main as an organ for solving controversial political questions, they view the Justices as political actors whose job it is to generate political outcomes. If the White House was telling the truth about the value of Roberts' real-world experience and Roberts was telling the truth when he confessed to harboring a pragmatic outlook, so goes the critique, then the Roberts Court should produce political outcomes that moderates can approve. Savage is using the term "modest" as a placeholder for "moderate on the political spectrum of contemporary American politics".
9.24.2006 9:01pm
Elliot Reed:
David Savage is one of the best Supreme Court reporters in the business, but I think his criticism misunderstands Roberts' confirmation hearing testimony. Roberts did not pledge that he would reach modest results: he pledged that he would do his best to follow the law. In a statutory case, the modest judge follows what Congress says, subject to preexisting rules of interpretation; he doesn't pick a substantive result that preserves the status quo and then manipulate the law to get there.
Yes, but saying you will "follow the law" is substanceless pablum when the dispute is about what constitutes following the law.
9.24.2006 9:26pm
SR (mail):
This criticism of Savage's criticism of Roberts is way too literal. Everyone knew that when Roberts said that he would be "modest" and only "call balls and strikes" that he was saying that he would be more of a moderate than Scalia and Thomas and not be an "activist judge." Savage identifies two opninions where he definitely fell short of his promise.
9.24.2006 9:45pm
jinnmabe (mail):

Everyone knew that when Roberts said that he would be "modest" and only "call balls and strikes" that he was saying that he would be more of a moderate than Scalia and Thomas and not be an "activist judge."


Well, apparently not everyone knew that's what he meant.
9.24.2006 9:56pm
OrinKerr:
Elliot,

I think following the law in the common sense of following existing precedents and interpretive methods faithfully actually has a great deal of meaning. I gather from the context that this is what Roberts meant.

SR,

So Roberts is a hypocrite if you judge him against the impression you believe he was trying to make, just not against the position he actually took?
9.24.2006 10:12pm
Tennessean (mail):
Perhaps I misread him, but I think Savage is indeed judging Roberts's modesty according to the criteria Roberts himself allegedly set forth: a judge is modest when the judge "interprets existing laws fairly, mindful of legislative intent and the requirements of the Constitution."

In Gonzales vs. Oregon, Savage thinks Roberts was not acting modestly because he chose to follow "a single federal officer's new interpretation of a long-standing federal statute that had not been endorsed by Congress" thereby "void[ing] the voice of Oregon's voters[ and]tak[ing] away the state's traditional power to regulate the practice of medicine."

In Rapanos vs. U.S, Savage things Roberts was not acting modestly because he wanted to "rewrit[e] the scope of the Clean Water Act in [his] first term."

In both cases, the immodesty is that Roberts, in Savage's view, elected to stray dramatically from the stable law as written with insufficient justification. The immodesty is that, according to Savage, Roberts strayed arrogated the role of the legislature. That the impact was drastic merely makes the offense more striking.
9.24.2006 10:16pm
Mark Field (mail):

While I agree with your analysis, part of Roberts' appeal, given that his nomination trailed in the wake of the Harriet Miers debacle, was his real-world experience as a litigator, including a vast history of appellate argument before the Supreme Court.


I'm nitpicking, but didn't Roberts come before Harriet Miers?
9.24.2006 10:58pm
Return of the Anaximander (mail):
Tennessean,

The flaw in your interpretation of Savage's view is that Savage, being the consummate professional that he is, has presumably read both Rapanos and Oregon. A better description of Rapanos would have included the fact that a district court found that the Army Corps of Engineers and the EPA granted themselves authority beyond what Congress had delegated. Thus, the Supreme Court's interjection of a new rule was no more than a response to a federal agency's unwillingness to conform its actions to the law. This is the position Roberts took, explicitly. In Oregon, too, the issue was not one of federalism per se, but one of interpreting a new regulation that had been approved by Congress to replace its predecessor. What made Attorney General Ashcroft's interpretation "unprecedented" was not its disconnect from the language that Congress had approved, but instead its disconnect from the attitude that the prior attorney general -- Janet Reno -- had toward that language. By leaving out the above facts, Savage leaves us with the impression that no modest jurist could side with legislative intent and reach the results that Roberts did, but that is simply untrue.
9.24.2006 11:09pm
Tennessean (mail):
ROTA: Are you critiquing me or Savage? I.e., by "the flaw in [my] interpretation" do you mean the error I made in intepreting or do you mean the error that is in the argument attributed to Savage under my interpretation? Every sentence but your first suggests the second, but addressing your response to me and wording your first sentence the way you have suggests the first.
9.24.2006 11:17pm
Return of the Anaximander (mail):
I'm nitpicking, but didn't Roberts come before Harriet Miers?

Turns out you're right -- I was actually outside of the country during that period, but his practical experience and pragmatism were still cited because he was originally the replacement for O'Connor (though that was switched after Rehnquist died). Even so, the purpose of citing his biography in such a way was that he was expected to be "moderate enough" in the sense that people had nothing to worry about even though O'Connor would be retiring. Senators modeled their questions on that self-evident truth; a number even asked O'Connor to reconsider stepping down because the nation needed her.

In any event, the post-Miers period, for Alito, proves the same point. After the Miers debacle, the White House went to find someone they could argue was as qualified and putatively harmless as Roberts. Despite his lack of charm, as some reports put it, Alito came across as rather moderate. It didn't hurt that a bank of Third Circuit appeals judges from across the political spectrum, including notable liberals, testified on behalf of his moderation.
9.24.2006 11:19pm
Return of the Anaximander (mail):
TN: ROTA: Are you critiquing me or Savage?

If your interpretation is correct, then Savage cannot be judging Roberts on the basis of Roberts' own criteria, or Savages did not read Rapanos and Oregon carefully, which suggests he is not a consummate professional. So, which is it? Are you arguing that Savage didn't read the cases carefully or are you arguing that Savage isn't judging Roberts on the basis of Roberts' own criteria? The latter is inconsistent with your statements thus far; the former calls into doubt why you are defending Savage's column.
9.24.2006 11:22pm
Tim Dowling (mail):
Great post, Orin. For a pre-ruling perspective on Rapanos and judicial modesty, see here
9.24.2006 11:44pm
Le Messureier (mail):
Rapanos v. United States, 547 U.S. ___ (2006), was a United States Supreme Court case challenging the Clean Water Act. It was the first major environmental case heard by the newly-appointed Chief Justice, John Roberts and Associate Justice, Samuel Alito. The Supreme Court heard the case on February 21, 2006 and issued a decision on June 19, 2006. While five justices agreed to void rulings against the plaintiffs, who wanted to fill their wetlands to build a pshopping mall and condos, the court was split over further details, with the four more conservative justices arguing in favor of development of land unless it was directly connected to waterways, the four more liberal justices arguing that such a ruling would overturn three decades of precedent and threaten the environment, and Justice Kennedy not fully joining either position

and

Plurality by: Scalia
Joined by: Roberts, Thomas, Alito
Concurrence by: Roberts
Concurrence by: Kennedy
Dissent by: Stevens
Joined by: Souter, Ginsburg, Breyer
Dissent by: Breyer


I'm sorry, but I must be missing something either in the post, the quotation in the post, or the summary of the decision (above) in wikopedia (certainly not the most reliable of authorities). I read elsewhere that this decision had changed the scope of the Clean water act. From the above it seems that the Scotus held for the paintiffs and that Roberts concurred, therefore limiting the scope of the Clean Water Act. I didn't come away with that from what I read in the post. Perhaps I am missing something and I need enlightenment. I'd go to the actual decision but I have neither the time nor the legal knowledge to accurately read a compicated Scotus decision. Or am I misreading the post?

Clarification would be appreciated.
9.24.2006 11:48pm
reflecting:
"with the four more conservative justices arguing in favor of development of land unless it was directly connected to waterways,"

This strikes me as a really strange summary. The opinion of the court cannot be per se attributed to a position favoring the development of land for its own purposes. Intead the question to reach the judgement was framed as whether or not an executive agency (the EPA) had assumed more extensive powers than Congress had granted under the Clean Water Act. Those who joined the judgment can reasonably be said (in this instance) to have favored restricting the executive to those powers duly authorized whereas the dissent favored allowing a 'more desirable' regulatory outcome.
9.25.2006 12:43am
MnZ (mail):
The Rapanos decision highlights on issue that I have always had with regulatory agencies. The Clean Water Act set limits the waters covered by the act. I don't know this for a fact, but I strongly suspect that those limits represented compromises to enable the bill to pass.

Is it really the place of a regulatory body to "fix" the compromises made in the legislative process?
9.25.2006 1:03am
godfodder (mail):
Whether or not he is following "the law," I have to say that in the case of the Oregon "Death with Dignity" Act, Roberts certainly upheld a moderate position, and one completely in keeping with the history and traditions of the medical (as well as the legal) profession.

As a physician, I have to tell you that this claptrap about allowing doctors to kill their patients is not a simple, morally benign, straight-forward notion, as some of you seem to believe. I don't care what the legislature of Oregon says. Killing people-- or handing them the loaded gun so they can do it themselves-- is not a role I care to play for society. I respectfully suggest that any such "mercy" killings be carried out by the members of the Oregon State legislature. Let's see how they like it.
9.25.2006 1:56am
Cornellian (mail):
As a physician, I have to tell you that this claptrap about allowing doctors to kill their patients is not a simple, morally benign, straight-forward notion, as some of you seem to believe.

This is completely beside the point. The issue is not whether it's simple, or morally benign or straight forward or any such thing. The issue is who gets to make the call as to whether it should be legal in Oregon, the people of Oregon, who approved the law in a referendum, or the unelected U.S. Attorney General, making up a new intepretation of a federal law, an interpretation that trampled on state jurisdiction and had never been endorsed by Congress.

Or, to put it another way, suppose the voters of Oregon had approved a referendum making assisted suicide unlawful, only to have the US Attorney General loftily declare that it was nevertheless perfectly legal in Oregon, no matter what the voters thought, because he'd just come up with a new interpretation of a drug pricing statute that overruled the wishes of the voters of Oregon?
9.25.2006 2:23am
Lev:

Ashcroft issued an order saying that doctors in Oregon could lose their licenses to prescribe medication if they gave dying patients lethal drugs.



I could be wrong, but I think the order was that doctors, in general, could lose their federal, DEA, license to prescribe controlled substances. Many many medications do not require a DEA number on the prescription.


the unelected U.S. Attorney General, making up a new intepretation of a federal law, an interpretation that trampled on state jurisdiction and had never been endorsed by Congress.


I don't get that.

1971 regulation promulgated by the Attorney General requires that such prescriptions be used “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR § 1306.04. To prevent diversion of controlled substances, the CSA regulates the activity of physicians, who must register in accordance with rules and regulations promulgated by the Attorney General. He may deny, suspend, or revoke a registration that, as relevant here, would be “inconsistent with the public interest.” 21 U.S.C. § 824(a)(4), 822(a)(2)

That, from the synopsis, says the language was from a DoJ regulation. Presumably, that trampled on states rights to legalize the use of certain drugs completely.

“For the reasons set forth in the OLC Opinion, I hereby determine that assisting suicide is not a ‘legitimate medical purpose’ within the meaning of 21 CFR § 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the CSA. Such conduct by a physician registered to dispense controlled substances may ‘render his registration … inconsistent with the public interest’ and therefore subject to possible suspension or revocation under 21 U.S.C. [§]824(a)(4).” 66 Fed. Reg. 56608 (2001).

And that is Ashcroft defining in one instance what "legitimate medical purpose" is, as used in his previously issued in 1971 regulation.


Or, to put it another way, suppose the voters of Oregon had approved a referendum making assisted suicide unlawful, only to have the US Attorney General loftily declare that it was nevertheless perfectly legal in Oregon, no matter what the voters thought, because he'd just come up with a new interpretation of a drug pricing statute that overruled the wishes of the voters of Oregon?


That's pretty well unrelated to the issue in the case. the better analogy would be along the lines of

i Or, to put it another way, suppose the voters of Oregon had approved a referendum making the use and distribution of cocaine and heroin lawful, only to have the US Attorney General loftily declare that it was nevertheless illegal in Oregon, no matter what the voters thought?
9.25.2006 2:59am
Lev:

In the other case, Roberts supported a sharp pullback in the Clean Water Act of 1972, which makes it illegal to discharge pollutants into the "navigable waters of the United States" without a permit. Because water flows downhill, the Environmental Protection Agency since the 1970s has said it has authority over all rivers, streams, channels, marshes and wetlands that may send water — and pollutants — to major lakes, rivers and bays.

But in Rapanos vs. U.S., Roberts joined Scalia, Thomas and Samuel Alito in calling for a new, sharp limit on the EPA's authority. Federal authority, they said, only applied to permanent and "continuous flowing" bodies of water, such as rivers and their main tributaries. This would have eliminated federal protection for most streams and wetlands in the interior of the nation and nearly all those in the West and Southwest because their stream beds are dry for part of the year.


I don't get how defining navigable waters is some immoderate thing.

Based on the way this guy likes old law, he should have been totally appalled at the damage Brown v Board of Education did to Plessy v Ferguson.
9.25.2006 3:03am
MarkM (mail):
Lev,

I think the relevant point in the Oregon decision is that the clear intent of restricting the use of controlled substances was to prevent the abuse or recreational use of addictive drugs. Whether assisted suicide is a legitimate medical practice is something for legislatures to decide, not political appointees.

Of course what all this has to do with interstate commerce is another issue, although the "conservatives" on the court strained that clause enough to allow for unlimited powers to regulate and prohibit drugs. Even so, those powers properly belong to Congress, especially on such an important public policy question.
9.25.2006 3:27am
Just an Observer:
Based on the way this guy [David Savage] likes old law, he should have been totally appalled at the damage Brown v Board of Education did to Plessy v Ferguson.

I know this is not exactly your point, but I found it interesting that during Roberts confirmation hearings, he cited Brown an an example of modest jurisprudence. His meaning of "modest" was quite nuanced, in this case reflecting incremental change built on incremental precedent, which never did overturn Plessy frontally.
9.25.2006 2:34pm
Roger Schlafly (www):
Whether assisted suicide is a legitimate medical practice is something for legislatures to decide ...
And Congress decided that the AG can make the regulations. Congress could have explicitly said whether killing patients is a legitimate medical purpose, but did not do so. Roberts voted to uphold the statute, and the Executive Branch's enforcement of it. How is that "activist"?
9.25.2006 2:37pm
Bryan DB:
Godfodder,
You need to read again. Oregon's Death with Dignity Act was not passed by the legislature; it was approved by Oregon's voters. Given that Oregon's voters gave to themselves the power to end their lives as they see fit, your indignation rings hollow. The people who passed the law *do* carry out the mercy killings.
9.25.2006 6:08pm
Bryan DB:
Roger,
I think the debate is whether it is within Congress' (or Ashcroft's) poewr to define "legitimate medical purpose" when that has traditionally been the province of the states. Congress can decide that the AG has the power to do all sorts of things; that doesn't mean they're correct.
9.25.2006 6:16pm
Lev:
MarkM


Whether assisted suicide is a legitimate medical practice is something for legislatures to decide, not political appointees.


I don't get that. Since:


1971 regulation promulgated by the Attorney General requires that such prescriptions be used “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR § 1306.04. To prevent diversion of controlled substances, the CSA regulates the activity of physicians, who must register in accordance with rules and regulations promulgated by the Attorney General. He may deny, suspend, or revoke a registration that, as relevant here, would be “inconsistent with the public interest.” 21 U.S.C. § 824(a)(4), 822(a)(2)


Of course the AG has to define "legitimate medical purpose" for purposes of the DEA registration. What you say would cause the whole regulation of controlled substances at the federal level, presumably a federal preemption of states rights to regulate them, to be determined by the states.


interstate commerce is another issue, although the "conservatives" on the court strained that clause enough to allow for unlimited powers


That water went over the bridge a long time ago, and it wasn't conservatives who did it.
9.26.2006 12:43am
Lev:
Just an Observer

That would be modest. But it does raise the question of whether it is properly modest - there are times to be modest and times to be...immodest.

If at the time a particular case comes before the court, a decision that is, well, bad or wrong, has been chipped away so there isn't much left of the original holding or rationale, then it makes some sense to chip away a final small chip that essentially leaves it gutted on the floor. That preserves an institutional reputation for paying attention to previously decided cases, not acting rashly or immodestly etc.

On the other hand, if the old decision was bad or wrong, it was bad or wrong, and it does not do the institutional reputation a whole lot of good for the answer to "was Plessy a bad decision" to be "yes" and the answer to "was Plessy ever reversed" to be "no, but..."
9.26.2006 12:51am