September 2005
The Features
Judicial Profiling
The Supreme Court under John Roberts

By Ashish Budev
Queen City Forum Magazine staff writer

Several months ago, the U.S. Court of Appeals handed down a decision lauded by civil rights groups. The case concerned “enemy combatant” Jose Padilla, who was arrested and detained for three years as part of the post-9/11 Al Qaeda manhunt. The Court ruled that President Bush did not have the legal authority to detain Padilla indefinitely and without charge. Padilla appealed, and a few weeks ago, on September 9, a three-judge appeals court panel reversed the previous decision concluding that Congress did indeed grant the President such authority in legislation passed after September 11.

There are two notable aspects of the panel’s decision. First, the opinion was written by J. Michael Luttig, who is short-listed for the Supreme Court. Second, the decision empowers the executive branch with greater authority, something that has long been on the agenda of neoconservatives.

A more powerful executive branch, or “imperial presidency” is just one issue likely to come before the Supreme Court in years to come. How America’s two new justices consider this and other key issues is likely to affect American democracy in very profound and fundamental ways. What can we expect from a Supreme Court with John Roberts?

.Conservative and neoconservative support comes from the two main special interest groups in control at this time—the religious right and corporations. The religious right has abortion criminalization at the top of its agenda, and they want a justice who is more likely to find a Constitutional basis not to legalize abortion than a justice like Harry Blackmun, who extracted a Constitutional “right to privacy”. Although Roberts has not made any legal foray into the abortion issue, they are comfortable with Roberts in large part because of his “innocence by association” with proponents of abortion criminalization, such as Operation Rescue, Pat Robertson, The Family Research Council, Concerned Women for America and Third Branch, all of whom support Roberts.

Corporations have enjoyed an almost unbelievable rise to political power and influence over the last several decades and have brought us to the point where almost all governmental policy is determined by business interests. For all practical purposes, it has been a silent coup; the White House makes policy based upon corporate interests, and Congress essentially allows corporate lobbyists to write legislation. The only branch left untouched is the judiciary, and corporate neoconservatives want a judge who knows his place and will refrain from “judicial activism”.

Opposition to Roberts

There was plenty of opposition to Roberts, much of it based on guilt-by-association to the same groups that supported him. In addition to the aforementioned groups, support from hard-core neoconservatives in the Federalist Society and at the National Review did nothing to placate those on the left.

But it’s more interesting than that. Looking at some of the groups that oppose Roberts, one sees a pattern—the National Women’s Law Center , the Leadership Conference on Civil Rights (LCCR) and the Bazelon Center for Mental Health Law, for example, are all organizations representing groups that have made civil rights progress in the last few decades, often because of court decisions. Environmental groups battling powerful corporations have also found respite in the courts.

This is significant because such groups (that is, the politically disenfranchised) have come to depend upon the courts for progress. As a result, their evaluation of potential nominees is based on the results of cases, and if the decisions in those cases were anti-progressive, they view the judge as also being anti-progressive. Whether this is the case or not can only be determined by a consistent pattern, and that can only be done with a long record on the bench, which Roberts does not have.

Forced to extrapolate about his commitment to progress, Senator Kennedy decided that Roberts did not have such a commitment, and that was enough for Kennedy to oppose the nomination. In his statement to the Judiciary Committee, Kennedy wrote “[w]e examined the only written record before us and saw John Roberts, aggressive activist in the Reagan Administration, eager to narrow hard-won rights and liberties, especially voting rights, women's rights, civil rights, and disability rights.”

Senator Leahy made similar comments in his statement, although he ultimately supported the nomination: “The decision was not an easy one. While I support moderation in judicial temperament, I do not support inaction in the face of injustice. I worry that a Court full of neutral umpires would not have decided Brown v. Board of Education or other cases in which the Court moved America forward. Modesty is to be respected to a point, but not when it stands in the way of progress. Historically, the Courts have often succeeded when our democratically elected branches could not.”

Separation of Powers

The key factor making Roberts so amenable to the right is his judicial philosophy of strict constructionism. This means he will make decisions based on what the law says, regardless of whether it is moral, equitable or fair. In plain language, he will not do the right thing for the wrong reason. Strict constructionists believe it is the duty of the legislature, not the judiciary, to make laws “right”. It is his adherence to the principle of the separation of powers that will define Roberts as a justice. As he said in his confirmation hearings, he sees himself as an umpire, not a player.

This highlights a fundamental difference in the way liberals and conservatives view this nominee and perhaps all nominees; liberals base their views on the final outcome of a court case, and conservatives base their views on the decision-making process.

This means that Roberts will be reluctant to override legislation that favors corporate and religious special interests over public interests and individual rights because legislation will be written by those special interests, and Roberts does not believe in second-guessing the legislature. A neoconservative court would essentially provide tacit compliance to whoever controls the legislative process. If the people want different results, the people will have to elect different legislators.

Right Justice, Wrong Time?

The money-driven election system and skewed balance of interests in the federal and state legislatures is a problem that can, to some extent, be ameliorated by the judiciary. But it won’t improve under John Roberts because, to be blunt, it’s not his job. It’s the job of elected representatives, not unelected judges, to make the laws work for all people. It is the judge’s job only to clarify what is legal and what is not.

Those who find themselves disenfranchised from politics and government will be no more likely to find remedy from the Roberts court than they did in the Rehnquist court, and perhaps less so. But the fact that Congress has largely abandoned its duty to serve the public interest and left the judiciary to pick up the slack is ultimately the fault of voters. Nobody gets into Congress without having enough votes, and a bad Congress should not be confused with a good judiciary.

John Roberts is not everyone’s first choice to head America ’s courts, but the worst one can say about him is that he is a good umpire in a corrupted game.

Contact

• ashishb@queencityforum.com