Epstein Questions Roberts's Questioners

Richard A. Epstein

July 24, 2005

When I watched President Bush introduce John Roberts as his nominee to fill the Supreme Court seat to be vacated by Sandra Day O'Connor, I had the rare sensation that the American political process was working well.

I have never met Judge Roberts, nor, for that matter, read a single one of his opinions. But I knew that he enjoyed the reputation as one of the keenest intellects and best Supreme Court advocates in the highly competitive Washington legal market. A glance at his gilt-edged resume--his 1979-80 clerkship with the late Judge Henry Friendly on the Second Circuit Court of Appeals leaps out--only increased my confidence in his nomination. His familiarity with complex business matters counts as a big added plus. Well done, I thought. This should be a cakewalk.

Then I heard Senator Charles Schumer, somber and self-righteous, reach, as he so often does, for the microphone, to announce that gilt-edged credentials are not enough. In his view, all nominees must be vetted for the soundness of their ideological positions. More pointedly, he observed that when John Roberts was up for a Circuit Court judge position, he refused, under questioning, to identify three Supreme Court decisions that he disagreed with. This time round, Sen. Schumer warned, that evasion will not work.

I hope that Judge Roberts resists the temptation to talk too much about past cases lest he prejudge future ones. Frankly, I care more about his willingness to listen than his ability to declaim at length. And I enthusiastically support his candidacy even if he rejects, publicly or silently, every outlandish position I hold dear. The fate of his nomination does not turn on my views.

I, of course, do not labor under the same institutional constraints that face Judge Roberts. Hence I should like to take up the gauntlet thrown down by Sen. Schumer to identify three recent Supreme Court cases that I disagree with. In addressing this issue, I quickly think back 38 years ago when Murray Bring, then of Arnold & Porter, interviewed this graduating Yale Law School student for a clerkship. "Which of the chief's opinions do you disagree with most?" he asked. "Where shall I begin?" was my ill-considered reply. Spirited discussion, but no clerkship.

In substance, that is my overall response to Sen. Schumer about the performance of the U.S. Supreme Court over the last two generations. In taking up his challenge, however, I think we have to play by a different set of ground rules. Hard debate is a two-way street. Every time I defend my views, I am rightly at risk for criticism and refutation. But Sen. Schumer thinks his views set the gold standard for constitutional interpretation. But he, too, should be at risk to questions about his deeply held beliefs. Here is how I would start.

From the get-go, I would insist that we view with suspicion the oft-hurled epithet of "judicial activism." Judicial review, which allows the Court to strike down federal and state legislation, is an indisputable part of the Constitution. The structural and substantive prohibitions the Constitution contains are large. One can be a "strict constructionist" and still believe that major legislative initiatives, executive orders, and administrative rules are unconstitutional. By the same token, the government should be accorded a wider degree of discretion in running its own affairs--the military, courts, schools, etc.--a view that is largely permissive of government affirmative action programs that parallel those which comparable private institutions adopt on a voluntary basis. In these cases the private benchmark offers a useful measuring rod for state discretion.

But for Sen. Schumer my questions address the coercive use of government power. What presumption should attach to the constitutionality of the use of state force? This vexed question of the "standard of review" is nowhere stated in the Constitution, and thus ultimately derives from a sense of its basic purposes, which I take to be the preservation of "ordered liberty"--with a state strong enough to rule, but not so strong as to snuff out the liberties of ordinary people to own property, enter contracts, worship, and speak as they please.

Given that view, the proper response to all forms of state regulation of private activities should be to subject them to serious judicial scrutiny, in order to see that they achieve their legitimate objectives. Judged by this twin standard, many decisions come out badly.

On top of the negative side of the ledger, are two Supreme Court decisions of the October 2004 term. I am proud to say I opposed government on both. Gonzalez v. Raich upheld the extravagant, if long-standing, reading of the Commerce Clause that allowed the federal government to prevent ordinary citizens to use medical marijuana under California's compassionate use statute. One can only wish that the Bush Justice Department had paid closer heed to the president's plea for a faithful interpretation of the original constitutional design. In sustaining the power of Congress to regulate these local activities, Justice John Paul Stevens relied on the 1942 Supreme Court decision in Wickard v. Filburn, which held that feeding one's own grain to one's own cows, counted as "commerce among the several states."

Wickard ran roughshod over the original constitutional design. As Madison said in Federalist No. 45, "the powers delegated by the proposed Constitution to the federal government are few and defined." Chief Justice Marshall, who followed his lead in Gibbons v. Ogden, wrote in 1824: "Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one." Huff and puff as you will, his careful balance between state and federal power does not translate into the much broader proposition that Chief Justice Stone announced in U.S. v. Wrightwood Dairy, in allowing Congress, in 1942, to regulate intrastate sale of dairy products: "The reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power."

Questions for Sen. Schumer: Does "restrict" mean "extend?" And if not, why distort the text and history of the Commerce Clause to make the U.S. a safer place for the agricultural cartels that Congress routinely props up?

The older view allowed Congress to keep the networks of interstate transportation and communication open, while permitting competition among states for the regulation of routine industries. Just why is this wrong?

Next, Kelo v. New London recently addressed the deceptively difficult question of what counts as a taking of property "for public use." Justice Stevens held that any "conceivable public purpose" sufficed, and thus allowed the City to buy out ordinary homeowners in order to warehouse their property for future but undefined "park support" purposes.

Kelo has prompted an incredible popular backlash, as legislatures across the country have wondered how an "activist" Court could have such a tin ear for the Constitution. How ironic! Justice Stevens's lamentable opinion was the polar opposite of judicial activism. Indeed, it represented a deadly form of judicial deference to legislative action that makes a mockery of both the text and purposes of the "Public Use" Clause. Justices William Rehnquist, O'Connor, Antonin Scalia, and Clarence Thomas forcefully dissented.

Question for Sen. Schumer: Does he countenance the raw use of state power against isolated and fragmented minorities?

Exhibit C is McConnell v. Federal Election Commission, which, in 2003, upheld extensive regulations over campaign finance.

Armed with the Progressive war-cry that money should be kept out of politics, an unusual duo of Justices O'Connor and Stevens upheld serious limitations that targeted soft money (e.g. general purpose contributions), and campaign ads. It is difficult to imagine a more potent state intrusion on core political speech. The Constitutional guarantee is frittered away if it means that people can only speak in isolation. Surely, they must be able to combine their resources, and hire others to speak for them as well, and face opposition that resorts to the same tactic. As Justice Scalia pointed out in dissent, the restrictions served to ease the path to incumbent re-election, and weakened party control over their own campaigns, giving unregulated splinter groups new-found influence.

Question for Sen. Schumer: Why tolerate this infringement on political liberties?

Note that my three cases all involve situations in which responsible constitutional interpretation requires some strong acts of judicial intervention. Liberals like Sen. Schumer think that this presumption works in cases like gay marriage (where they have a strong case) and abortion (where their case is far weaker, owing to the interest of the unborn child).

The positions that I take may well be wrong, and, as I said before, I have no idea what Judge Roberts' views are on these questions. Nor, for the confirmation process, do I care. My main point here is that Sen. Schumer's own views are subject to powerful intellectual counterattack, so that before he and his allies cast stones on John Roberts, he should recognize that he and his ilk also live in a glass house.

Mr. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution. His next book, How the Progressives Rewrote the Constitution, will be published this fall by the Cato Institute.