Thursday, July 21, 2005

What Does Judge Roberts Stand For?

Good Afternoon all! : )

There is a very interesting review of Supreme Court Nominee Judge Roberts over at the New York Times Website. It warns against using the cases he's argued as a barometer of his judicial reason. When you are hired to argue a case, you argue the case, even if your personal feelings don't match up with the opinion you are required to express.

In fact, the fact that he has spent so much time as a lawyer and so little time as a judge my strongly affect how he operates on the bench.
In the confirmation hearings for his appellate judgeship, Mr. Roberts said he was bound to apply the Supreme Court's precedents. That was a good answer at the time, but it is no longer terribly relevant: as a Supreme Court justice, he would be free to overturn the court's earlier rulings. Would he read precedents broadly or narrowly? And under what circumstances might he vote to uphold precedents with which he disagrees?

The truth is that Judge Roberts probably doesn't have a well-thought-out theory of stare decisis. As an appellate lawyer and judge, he had no need or occasion to develop one.

IN fact, very few Supreme Court justices have developed a theory of stare decisis that is entirely satisfying. At one extreme there is Justice Thomas, who, according to his colleague Justice Scalia, is willing to overturn any precedent he thinks is inconsistent with the original understanding of the Constitution. At another extreme have been justices like John Marshall Harlan, who, in the name of judicial continuity, are very reluctant to overturn precedents, even those with which they disagree.
I think of this a little like a battle. As a lawyer, Roberts had to fight his courtroom enemies on the legal terrain created by the law and by precedents. As a Supreme Court Justice he will have the power to change the terrain. Will using that power come naturally to him?

It's hard to say, but one suspects he might learn how to use that power after a while, anyway.

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