Sunstein: John Roberts, Minimalist

Some conservative judges are minimalists, others fundamentalists, and there is a huge difference between the types. Unless we appreciate that difference, we will never be able to understand the debate over the nomination of Judge John Roberts to the Supreme Court.

Minimalist conservatives insist that social change should occur through the democratic process, not through the judiciary. They do not want to extend the liberal Supreme Court decisions of the 1950s and '60s. On principle, they prefer narrow decisions and small steps, nudges not earthquakes. When confronted by contentious issues, minimalists focus on details and particulars, and are prepared to rule in ways that run contrary to their politics.

Fundamentalist conservatives do not believe in small steps. They think that in the last 50 years, constitutional law has gone badly, even wildly, wrong. They want to reorient it in major ways. They oppose Roe v. Wade, of course. But they also reject the right of privacy itself, arguing it lacks roots in the Constitution. They do not hesitate to use judicial power to strike down affirmative action and to protect property rights. They are entirely prepared to restrict the authority of Congress by invalidating laws protecting the environment, campaign finance reforms or gun control restrictions. They also have an expansive view of presidential power.

In many areas, then, fundamentalists welcome a highly activist role for the federal courts. Consider a remarkable fact: Since 1995, the
Rehnquist Court has struck down over 30 acts of Congress, including parts of the Violence Against Women Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act. Fundamentalist conservatives generally approve of these decisions, and would like to see more of the same.

Judicial fundamentalists hold their views in complete good faith. But it is impossible to ignore the fact that there is great overlap between their constitutional vision and the politics of the extreme right wing of the Republican Party. In this way, fundamentalist conservatives are the mirror-image of the aggressively liberal federal judges of the mid-20th century. When Supreme Court nominees read the Constitution in a way that squares with a political platform, both the Senate and the nation should be greatly concerned.

Many people feared President Bush would try to replace Sandra Day O'Connor, a minimalist conservative, with a nominee promoting an ambitious agenda for remaking American constitutional law. But there is not much evidence that the president's choice, John Roberts, has such an agenda. In his two years on the federal bench, he has shown none of the bravado and ambition that characterize the fundamentalists. His opinions are meticulous and circumspect. He avoids sweeping pronouncements and bold strokes, and instead pays close attention to the legal material at hand. He is undoubtedly conservative. But ideology has played only a modest role in his judicial work. For example, he voted to allow a civil rights action to proceed against the D.C.-area subway system. In so voting, he rejected the claim, advanced by Reagan appointee David Sentelle, that Congress lacks the power to require the subway system to waive its sovereign immunity.

Judge Roberts has written a few controversial opinions that might seem to show fundamentalist inclinations. In one case, he argued in favor of broad presidential authority to bar federal courts from hearing a lawsuit brought against
Iraq by American prisoners of war. But even there, he hewed closely to the legal materials and went out of his way to suggest the question was "close."

In an opinion that has already received great attention, Judge Roberts argued the full court of appeals should consider a development company's argument that the Endangered Species Act could not constitutionally be applied to a project that involved
California rather than interstate commerce. It would be quite aggressive for a federal court to accept this argument. But Judge Roberts' opinion suggests a degree of modesty. Review before the full court, he wrote, would "afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent." This sentence is emphatically minimalist. It reflects an unwillingness to speak broadly and a desire to proceed with careful attention to particular facts and arguments.

True, his political inclinations were far more visible as a young lawyer. He appeared to see himself as part of the Reagan Revolution, and took a series of stands that marked him as conservative even within the Reagan administration. He referred disparagingly to the "so-called 'right of privacy,'" described independent regulatory agencies such as the Federal Trade Commission as a "constitutional anomaly," and claimed Congress has the power to remove the federal courts from areas such as school prayer and abortion -- hotly contested views, to say the least. But even in the heady 1980s, none of the young Mr. Roberts' views was reckless or implausible: All of them could claim some existing legal support.

The Roberts nomination is not welcomed by those who object to the rightward drift of the federal courts or believe that Justice O'Connor's successor should be no more conservative than she. And on key issues, Judge Roberts will likely be on Justice O'Connor's right. There is no assurance he will vote to uphold Roe, and it is most unlikely he will aggressively read the Constitution to protect vulnerable members of society.

But at this point in our history, the most serious danger lies in the rise of conservative judicial activism, by which the interpretation of the Constitution by some federal judges has come to overlap with the ideology of right-wing politicians. For those who are concerned about that kind of activism on the Supreme Court, opposition to the apparently cautious Judge Roberts seems especially odd at this stage. The far more reasonable path is to keep an open mind and to hope for a serious and substantive confirmation process.

Mr. Sunstein teaches at the University of Chicago Law School and is author of Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America (Basic Books, 2005).


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