Cass Sunstein discusses his view of chief justice nominee John Roberts

September 10, 2005

This is WEEKEND EDITION from NPR News. I'm Scott Simon.

President Bush moved swiftly to name a new chief justice after the death last weekend of Chief Justice William Rehnquist. Mr. Bush nominated John Roberts, whom he selected in July to succeed Justice Sandra Day O'Connor. The O'Connor position remains open. Mr. Roberts, who is now an appellate court judge, is 50 years old, and if confirmed, he might administer the nation's highest court for more than a generation and have a profound and lasting effect on all US citizens. Cass Sunstein is author of a new book, "Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America." He's a professor at the University of Chicago Law School and joins us from there.

Professor Sunstein, thanks very much for being with us.

Professor CASS SUNSTEIN (Author, "Radicals in Robes"): Thanks so much for having me.

SIMON: You book doesn't mention Judge Roberts specifically, but of course, he's ordinarily identified as a conservative thinker. So can a fair person infer from at least the title of your book that you have doubts about his appointment as chief justice?

Prof. SUNSTEIN: I think that would be too strong. There are different kinds of conservatives, and Judge Roberts may well be the more modest kind of conservative who believes in literally conserving the law. He's also meticulous. He doesn't show the kind of bravado and swagger that some liberal judges and some conservative judges show. He's cautious and non-accusatory in his writing. Some of his opinions might be taken to be a sign of concern. He did suggest that the Endangered Species Act might be unconstitutional; that's strong stuff for a lower court judge to say. But his lower court opinions have not shown the kind of rage or clear ideology that we can find in some of the more extreme appointees.

SIMON: Well, give us an idea of the kind of jurist you're talking about.

Prof. SUNSTEIN: Some judges believe that we should go in a time machine and restore the Constitution from 1920 or 1868 or from the later part of the 18th century when the Constitution was ratified, and people who think that don't believe there's any right of privacy in the Constitution, they question the existence of the Federal Communications Commission, they question aspects of the Clean Air Act, they even question, some of them, whether the national government is banned from discriminating on the basis of race. So on this view, we would lose many of our treasured rights and we would jeopardize some of our most established institutions.

SIMON: Who do you consider an extreme appointee?

Prof. SUNSTEIN: I think on the Supreme Court itself, Justice Thomas has been the most extreme member. Justice Scalia himself said of Justice Thomas that he doesn't believe in following precedent if he thinks it was wrong in constitutional cases. Justice Thomas has said that the separation of church and state doesn't apply to states. Justice Thomas has taken a very hard line against affirmative action programs without talking, incidentally, much about constitutional history. He went out of his way to suggest that commercial advertising deserves the same level of protection as political speech, which is an extraordinary position to say about the First Amendment of our Constitution. He has asked on 23 occasions the Supreme Court to overrule its own precedents. Not one of the other members of the court is close to that record.

SIMON: You don't see Judge Roberts as being cut from the same cloth.

Prof. SUNSTEIN: There's every reason to believe that Judge Roberts is more cautious and more focused on following precedence than Justice Thomas. I'll mention another judge, if I may...

SIMON: Sure.

Prof. SUNSTEIN: ...Judge Janice Rogers Brown, who's on the second more important court in the country--that is, the DC circuit. She's very able. She's also called the New Deal our socialist revolution and suggested that the Supreme Court decisions striking down minimum wage and maximum hour laws might well be unconstitutional. Now that's radical stuff. I think it's also very, very hard to defend. Judge Roberts hasn't suggested ever that he thinks that minimum wage and maximum hour laws are unconstitutional. He hasn't suggested ever that the New Deal was a form of socialism in the United States.

SIMON: New Deal a form of socialism because it vastly increased the power of the federal government in American life.

Prof. SUNSTEIN: Sure. It's completely fine to challenge the New Deal as a big mistake, but for federal judges to suggest it was unconstitutional is to threaten a form of judicial activism that would make Roe against Wade look like child's play.

SIMON: Cass Sunstein. He is the Karl Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School. Professor Sunstein, thanks very much.

Prof. SUNSTEIN: Thank you.

SIMON: And you can listen to the Roberts hearings in full at npr.org starting Monday at noon.