Judicial Balderdash

Whoever thought that this Supreme Court would make Justice Anthony Kennedy, with his nuanced and restrained decisions, look like a liberal? As Adam Cohen so convincingly demonstates (case by case) in the article below from the New York Times, John Roberts, who just finished his first term as Chief Justice, apparently likes judicial modesty mostly when it suits his conservative temperament. The gall of conservatives who rail against "judicial activism" is astonishing. But liberals who critique this type of conservative rhetoric have little reason to feel above it all. The "lefties" on the court-Stevens, Breyer, Souter and Ginsburg, also tend to come up with arguments that resemble those of the liberal political establishment (to which they presumably belong-Justice Souter being the mystery man here). As one who was disgusted with the Supreme Courts intervention in the 2000 election, I would like to be able to argue with a clear conscience that the Supreme Court should be, as the third branch of government, above partisanship. But since it clearly isn't (anyone wish to defend the Warren Court as non-partisan?), and since right now I don't want it be, I just cheer everytime they restrain the overreaching of an Administration which apparently has little respect for its own defenders in Congress and almost none for anybody else. Purity is a nicety that can be saved for the next administration.

July 9, 2006
Editorial Observer
What Chief Justice Roberts Forgot in His First Term: Judicial Modesty
By ADAM COHEN
At the confirmation hearings for John Roberts, there were two theories about what kind of a chief justice he would be. His critics maintained that he was an extreme conservative whose politics would drive his legal rulings. Judge Roberts, on the other hand, insisted that he was "not an ideologue," and that his judicial philosophy was to be "modest," which he defined as recognizing that judges should "decide the cases before them" and not try to legislate or "execute the laws."
Judicial modesty is an intriguing idea, with appeal across the political spectrum. For all the talk of liberal activist judges, anyone who is paying attention knows that conservative judges are every bit as activist as liberal ones; they just act for different reasons. A truly modest chief justice could be more deferential to the decisions of the democratically elected branches of government, both liberal and conservative, and perhaps even usher in a new, post-ideological era on the court.
That is not, however, how Chief Justice Roberts voted in his first term. He was modest in some cases, certainly, but generally ones in which criminal defendants, Democrats and other parties conservatives dislike were asking for something. When real estate developers, wealthy campaign contributors and other powerful parties wanted help, he was more inclined to support judicial action, even if it meant trampling on Congress and the states.
The term's major environmental ruling was a striking case in point. A developer sued when the Army Corps of Engineers denied him a permit to build on what it determined to be protected wetlands. The corps is under the Defense Department, ultimately part of an elected branch, and it was interpreting the Clean Water Act, passed by the other elected branch. Courts are supposed to give an enormous amount of deference to agencies' interpretations of the statutes they are charged with enforcing.
But Chief Justice Roberts did not defer. He joined a stridently anti-environmentalist opinion by Justice Antonin Scalia that sided with the developer and mocked the corps's interpretation of the law — an interpretation four justices agreed with — as "beyond parody." The opinion also complained that the corps's approach was too costly. Justice John Paul Stevens dryly noted that whether benefits outweighed costs was a policy question that "should not be answered by appointed judges."
In an opinion on assisted suicide, Chief Justice Roberts was again a conservative activist. The case involved Attorney General John Ashcroft's attempt to invoke an irrelevant federal statute to block Oregon's assisted suicide law, which the state's voters had adopted by referendum. Even though it meant overruling the voters, intruding on state sovereignty and mangling the words of a federal statute, Chief Justice Roberts dissented to support Mr. Ashcroft's position.
Chief Justice Roberts voted against another democratically enacted, progressive law when the court struck down Vermont's strict limits on campaign contributions. He joined an opinion that not only held that the law violated the First Amendment, but also engaged in the kind of fine judicial line-drawing — in this case, about the precise dollar limits the Constitution allows states to impose — that is often considered a hallmark of judicial activism.
One of the court's most nakedly activist undertakings in recent years is the series of hoops it has forced Congress to jump through when it passes laws that apply to the states. Judge John Noonan Jr., a federal appeals court judge appointed by President Ronald Reagan, has complained that the justices have set themselves up as the overseers of Congress. But Chief Justice Roberts voted to put up yet another hoop, requiring Congress to put the states on "clear notice" — whatever that means — before requiring them to pay for expert witnesses in lawsuits involving special education. It is a made-up rule that shows little respect for the people's representatives.
These cases make Chief Justice Roberts seem like a raging judicial activist. But in cases where conservative actions were being challenged, he was quite the opposite. When a whistle-blower in the Los Angeles district attorney's office claimed he was demoted for speaking out, Chief Justice Roberts could find no First Amendment injury. When Democrats challenged Republicans' partisan gerrymandering of Texas's Congressional districts, he could find no basis for interceding.
The Roberts court's first term was not radically conservative, but only because Justice Anthony Kennedy, the swing justice, steered it on a centrist path. If Chief Justice Roberts — who voted with Justice Scalia a remarkable 88 percent of the time in nonunanimous cases — had commanded a majority, it would have been an ideologically driven court that was both highly conservative and just about as activist as it needed to be to get the results it wanted.
Chief Justice Roberts still probably views himself as judicially modest, and in some ways he may be. He has been reasonably respectful of precedent, notably when he provided a fifth vote to uphold Buckley v. Valeo, a critically important campaign finance decision that is under attack from the right. He has also been inclined to decide cases narrowly, rather than to issue sweeping judicial pronouncements. But at his confirmation hearings, he defined judicial modesty as not usurping the legislative and executive roles.
His approach to his new job is no doubt still evolving, which could be a good thing. The respect for the elected branches that he invoked while testifying before the Senate Judiciary Committee is hardly a perfect judicial philosophy, especially today, when we need the court to resist the president's dangerous view of his own power. Still, that principled approach would do more for the court and the nation than the predictable arch-conservatism the chief justice's opinions have shown so far.