Strauss Testifies at Roberts Confirmation Hearings

September 16, 2005

Thank you very much, Mr. Chairman, members of the Committee.  It is an honor to appear before you.

My purpose here is, really, not to pass judgment on John Roberts, someone I admire very much in many ways, but rather to speak about a development in the subject I teach and study, constitutional law, something that has happened in that area in the last generation that is very significant and directly relevant to this hearing and to the judicial appointments process generally, and that development is a change in the nature of judicial conservatism.   You can see the change if you look at what President Nixon said when he appointed Justice Rehnquist, and what President Bush, who of course has nominated Justice Rehnquist's successor has said.

President Nixon said he wanted to appoint a judicial conservative, and he identified his model.  His model was Justice Harlan.  President Bush, of course, has identified his models, and his models are Justice Scalia and Justice Thomas.   All these people are judicial conservatives, but there is a world of difference between the two different kinds of conservatism.  The hallmarks of Justice Harlan's work were deference to Congress and respect for President.   The hallmarks of the new conservatism is something close to the opposite of that, a skeptical attitude toward the work of Congress, and a willingness to overturn precedent.   And it is really that difference, not the difference between liberals and conservatives, but the difference between these two different kinds of conservatism that make the stakes in the judicial appointments process very high at this point in our history.

I identified a number of areas in my written remarks where I think the stakes are high.  Let me just mention two here.  The first is Congress's power to address the problems facing the American people and to protect the rights of the American people.   I think it is fair to say that the power of Congress to do those things is under challenge in the Judiciary today in a way it has not been since before the Great Depression, and this is true not just in the case of the now-famous toad, but in area after area, and many of which the hearings have discussed, in the area of environmental protection, workplace safety, consumer protection, campaign finance, the rights of the disabled as we heard, the free exercise of religion, age discrimination, gender discrimination, the protection of intellectual property rights, and all of those areas there are significant efforts under way in the Judiciary to limit in important ways the power of Congress to do what it has been doing now for the better part of a century, protecting the rights and serving the needs of the American people.

The other area is of course the right of privacy.  The modern right of privacy was essentially an invention of Justice Harlan, a judicial conservative that President Nixon cited as a model when he appointed Justice Rehnquist.   It was an opinion Justice Harlan wrote that was the font of privacy law that has extended not just in the case of abortion, but in many other areas, not just in the case of reproductive rights, but in many other areas today.

Justice Harlan took a view of privacy that rested on a general and expansive reading of American traditions.  He did not expect people claiming rights to point to some specific tradition or some specific body of law.   He understood that the questions were more difficult than that.  The right of privacy now, if anything, is more important, indeed much more important than it was when Justice Harlan wrote, "With changes in reproductive technology and end of life technologies that make these questions all the more acute."

The question whether we will have a Justice Harlan-like approach to the right of privacy or a skeptical approach to the right of privacy that questions whether it even exists and evinces a desire to confine it as narrowly as possible, that question it seems to me is very much on the table, and will be a question that will be with us for the next generation.

I don't want to be alarmist about this.  The law doesn't change overnight.  These are not changes that will occur maybe not even with this appointment, but there are points in the history of the Supreme Court--the New Deal was one, the civil rights revolution was one--there are points in the history of the Supreme Court where the Court rethinks and redefines its relationship to the other branches of Government and its relationship to the rights of individuals.   We may be at such a point.  There are indications that we are at such a point.  We have not passed it yet, but the next few appointments to the Supreme Court will determine whether this is an era in which the Supreme Court redefines its relationship in a way that is basically unknown to Americans living today.   Those are the stakes presented by this appointment and by other appointments that this Committee will face.

Thank you very much, Mr. Chairman.


David A. Strauss