ConfirmThem

By Feddie Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

I share many of the substantive sentiments expressed by Andrew in this post, but I would respectfully disagree with his characterization of Roberts as a judicial activist (or, for that matter, an "activist-enabler").

Indeed, Roberts is no more of an activist than Justice Scalia (see his views on the non-delegation doctrine). Both essentially subscribe to what I refer to as Burkean Originalism--i.e., a jurisprudential philosophy that balances originalism with the doctrine of stare decisis. Jurists who subscribe to this school of thought might, for example, uphold Griswold (right to contraception) but vote to overrule Roe on the basis that the holding of the former has become widely accepted by the vast majority of Americans (i.e., woven into the fabric of our constitutional republic), whereas the latter remains a hotly contested and divisive issue (as evidenced by the last two days of statements and questioning at Roberts's SJC hearing).

Now, don't get me wrong. I am no fan of this approach. As I have often noted over at my blog, Southern Appeal, "Stare decisis is fo' suckas!" Indeed, I am squarely in the Thomas camp. If a case was wrongly decided as an original matter, then frankly I could care less what the implications of overruling the decision might be. Judges are charged only with interpreting the law, not with gauging the effect their decisions might have on our nation's public policy landscape.

Finally, a brief word about substantive due process. Like Andrew, I consider SDP to be sheer nonsense. Due process is, by its very nature, procedural--not substantive. As Professor Ely once quipped, "Substantive due process is a contradiction in terms--sort of like green pastel redness." So why did Roberts tip his hat to SDP during the SJC hearing today? Because it is highly unlikely that the Court's SDP jurisprudence will be revisited any time in the near future. You've got to pick your battles, folks. And keep in mind too that Roberts's acceptance of SDP is likely to be limited to boxing in those cases that are (for better or worse) now widely accepted by the general public. That is what Burkean Originalism is all about. The good news is that Roberts is not likely to expand SDP, but be more than willing to overrule SDP cases of a more recent vintage, like Lawrence.

In sum, I think Andrew (and perhaps many of you) are mistaken in your assessment of what Judge Roberts will or will not do as chief justice. In any event, it's a done deal, so y'all might as well just cool your jets and hope for the best. I would also respectfully suggest that y'all take into consideration the fact that people much more in the know--like Leonard Leo, Bill Pryor, Justice Scalia, and Rick Santorum--are all very enthusiastic Roberts supporters. I wonder why that is? Perhaps they know something that many of you don't. Or perhaps they're all wrong, and y'all are right. Who knows? I strongly suspect that we'll all know what kind of justice Roberts will be shortly after he takes the oath of office. I, for one, am willing to have faith in the president's selection and the internal vetting process that resulted in Roberts being chosen.