Would Roberts practice the restraint he preaches?
Judges should judge, nothing more, says High Court nominee.
Humility isn't a characteristic usually associated with powerful government officials. But it's a key trait for a judge to fulfill his proper constitutional role, according to Supreme Court nominee John Roberts.
In his view, Congress makes the law, the executive branch executes the law, and it is the job of judges to provide judgment - nothing more.
Now, with his confirmation hearings set to begin next Tuesday, one of the big questions looming over Mr. Roberts's nomination is how this philosophy of restraint will translate should major liberal precedents like abortion and affirmative action once again face Supreme Court review.
Will he uphold existing legal precedents despite possible disagreements with earlier court decisions? Or will he use his power as a life-tenured justice to enforce a more conservative reading of constitutional law?
If Roberts and his White House handlers are successful, no clear answers to such questions will emerge during his confirmation hearings. Instead, senators will be left with little more than a vague notion of how he might vote in specific cases.
The tactic is deliberate. It helps insulate the nominee from the toughest questions. But it is primarily designed to protect the independence of the judiciary by avoiding any appearance that a prospective justice is promising to rule in a certain way in specific cases in exchange for Senate support.
The tactic can be a great source of frustration for senators and members of the public worried about certain legal precedents being overturned. But there are signs that Roberts's views on judicial restraint are deeply held and of long standing.
Judges "do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law," Roberts wrote in August to the Senate Judiciary Committee.
Roberts is no stranger to Supreme Court confirmation hearings. As a young lawyer in the Reagan administration, he helped Sandra Day O'Connor prepare for her Senate questioning.
He described the strategy in a 1981 memo: "The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments."
Roberts adopted the same strategy in 2003 during his confirmation hearings to the federal appeals court in Washington, D.C.
"My own judicial philosophy begins with an appreciation of the limited role of a judge in our system of divided government," he wrote in response to Senate questions two years ago. Roberts even used the same word that he is using now - humility - to describe his approach.
Working as a judge "requires an essential humility grounded in the properly limited role of an undemocratic judiciary in a democratic republic," he said.
The essence of the conservative push for judicial restraint is that under the American system of checks and balances there is no check on unelected, life-tenured judges abusing their power when straying from the limiting text of the Constitution. The only restraint in this area is judicial self-restraint, they say.
Liberals disagree with this view. They say the Constitution is a living document, flexible enough to accommodate expansive rulings in response to contemporary problems.
Conservatives call this approach an invitation to engage in judicial activism. They see it as an attempt to achieve by judicial fiat what could not be achieved through the political process.
Others counter that recent high court rulings striking down acts of Congress, such as the Violence Against Women Act, are a form of conservative judicial activism.
Roberts's position on judicial restraint today appears to be largely consistent with the talking points and memos he drafted 24 years ago as a young lawyer in the Reagan administration.
"Courts cannot, under the guise of constitutional review, restrike balances struck by the legislature or substitute their own policy choices for those of elected officials," Roberts wrote in a 1981 draft article on judicial restraint.
"All of us ... may heartily endorse a 'right to privacy,' he wrote. "That does not, however, mean that courts should discern such an abstraction in the Constitution."
The quote could provide grist for pointed questions from senators about whether Roberts recognizes a right to privacy (and, by extension, an abortion right) within the Constitution. But Roberts has dodged such case-specific questions in the past.
Perhaps the best evidence of how Roberts's approach to judicial restraint translates to a courtroom are his rulings as a federal appeals court judge.
In a March 2004 decision dealing with a dispute between a pharmaceutical manufacturer and the Drug Enforcement Administration, Roberts agreed with his two colleagues on the three-judge panel that the case should be remanded. But in a concurring opinion, Roberts objected to the two other judges attempting to interpret the applicable statute prior to the issue being returned to the DEA.
"This is sufficient ground for deciding this case, and the cardinal principal of judicial restraint - if it is not necessary to decide more, it is necessary not to decide more - counsels us to go no further," he wrote.
"My brethren, however, are not content with this narrow and effectively conceded basis for disposition, and instead adopt an alternative ground of far broader significance," he says. "I cannot go along for that gratuitous ride."
The now-famous French fry case is another example of Roberts's application of judicial restraint. In that 2004 case, a 12-year-old girl was arrested, handcuffed, and detained because she had eaten a French fry in a Washington, D.C., subway station. The resulting lawsuit asked the court to declare that the city had violated the girl's constitutional rights by enforcing its policy of arresting teens who eat in the subway system while only issuing warnings to adults caught eating.
The Roberts opinion zeros in on the legal issue and leaves policy questions to city officials.
"The district court described the policies that led to [the girl's] arrest as 'foolish,' and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry," he wrote. "The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not."