Mr. Modesty

Damon W. Root | June 24, 2008

During his Senate confirmation hearings, soon-to-be Chief Justice John Roberts stressed his belief that the Supreme Court should practice judicial "modesty," a respect for precedent and consensus that he extended all the way to the abortion-affirming Roe v. Wade, a decision he described as "the settled law of the Land."

Did Roberts mean what he said? Jeffrey Rosen thinks so. In a provocative piece for the New Republic, Rosen argues that while it's too early to say for sure,

it seems increasingly clear that liberals dodged a bullet when President Bush nominated [Roberts] to be chief justice. Instead of siding with conservative extremists like Clarence Thomas, who are eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power whenever possible, Roberts prefers narrow opinions that can attract support from the center. Liberals ought to applaud this instinct because, even if Barack Obama gets to appoint the next justice or two, it's the only thing standing between them and a Court eager to roll back progressive reforms.

Setting aside Rosen's tiresome crusade against the non-existent "Constitution-in-Exile" movement, the point about Roberts and narrow opinions rings true. As Rosen learned from the chief justice himself, Roberts has, among other things, encouraged the Court to hear more business cases, since those tend not to divide the justices along stark ideological lines, contributing to "a culture and an ethos that says, 'It's good when we're all together.'"

Interestingly, Rosen's conclusions are very different from those of other liberal legal scholars, particularly New York University's Ronald Dworkin, who has argued that Roberts and his fellow conservatives have been fomenting a revolution that is "Jacobin in its disdain for tradition and precedent."

As evidence against such claims, Rosen points to the differences between the recent habeas dissents of Roberts and Justice Antonin Scalia. There is definitely something to that. As I've previously noted, Scalia's dissent is an ugly, even menacing document, while Roberts's makes the surprising point that, "the habeas process the Court mandates will most likely end up looking a lot like the [Detainee Treatment Act] system it replaces." That's a long way from Scalia's vicious assertion that Boumediene v. Bush "will almost certainly cause more Americans to be killed."

But of course we're not done with the current term yet. There's still the eagerly anticipated District of Columbia v. Heller, where the Supreme Court will decide on the constitutionality of Washington, DC's sweeping gun ban and most likely settle whether the Second Amendment protects an individual or a collective right to keep and bear arms. That decision may come as early as tomorrow morning. We'll see if Rosen still wants to call this term "something of a bipartisan lovefest" after that.

Comments

Nigel Watt|6.24.08 @ 5:21PM|#

I'm scared of the Heller decision, whatever it is.

No Name Guy|6.24.08 @ 5:29PM|#

I'm not concerned, I think gun rights is one area where this country has moved in the right direction in recent years.

Gun control, outside of extremely Democratic (and extremely left-wing Democratic at that) urban areas is dead as a political issue.

Naga Sadow|6.24.08 @ 5:33PM|#

Roberts is kind of an enigma in my opinion. I gotta agree with Root that Roberts will more than likely stick with less divisive issues.

Cornolio|6.24.08 @ 5:38PM|#

I was naive as a young man. I really thought that there were some esteemed positions in life that were not highly politicized.

That was before Rove - or the "pre 9/11" mindset.

How quaint of me.

|6.24.08 @ 5:44PM|#

You can't read Reason comment threads and still believe there is no Constitution in Exile movement.

T|6.24.08 @ 5:52PM|#

You can't read Reason comment threads and still believe there is no Constitution in Exile movement.

Hell, Andrew Napolitano wrote a book with that title. I dunno if it's a movement, but the idea is definitely out there.

No Name Guy|6.24.08 @ 5:53PM|#

Its kinda sad that a movement to restore a more strict interpretation of the Constitution is considered scary and radical, while wanting to bend it to say things it does not even remotely imply is considered moderate and responsible.

|6.24.08 @ 6:15PM|#

Oh, absolutely, NNG. I mean, name for me one movement whose central platform was the need for a "more strict interpretation" of its society's founding document that was scary or radical.

Living Document|6.24.08 @ 6:16PM|#

Amendments have been "bending" the Constitution over and over again for over 200 years.

No Name Guy|6.24.08 @ 6:17PM|#

I have no problem with Amendments. Want to try to pass an Amendment? Go for it!

Alex|6.24.08 @ 6:58PM|#

Nice snark, joe ;).

I think the more interesting (and scarier) contrast is that so-called "strict Constitutionalists" are very nearly always the same people opposing any barriers to the expansion of *presidential* power, as if that power were the only one of the federal government that was completely unrestricted.

robc|6.24.08 @ 6:58PM|#

Amendments bend nothing. They are following the constitution to the letter.

I dont know who originally said it, but I love the quote:

"A living constitution is a dead constitution"

robc|6.24.08 @ 7:00PM|#

argued that Roberts and his fellow conservatives have been fomenting a revolution that is "Jacobin in its disdain for tradition and precedent."

Isnt one of the arguments in the gay marriage issue that the conservative are following tradition and precedent?

.|6.24.08 @ 7:15PM|#

"A living constitution is a dead constitution"

A direct contradiction - which speaks to the stupefying lack of logic of the original spokesman.

|6.24.08 @ 7:15PM|#

Since it wasn't considered cruel or unusual to flog people for petty theft or hang them for horse theft circa 1800, that means those punishments couldn't possibly be cruel or unusual.

Since people in 1790 weren't certain that jailing people for criticizing the government violated the First Amendment - since it was a hotly debated issue at that time - then we can't say the First Amendment definitively forbids that.

|6.24.08 @ 7:23PM|#

I agree with Joe, bring back flogging and horse hangings.

|6.24.08 @ 7:26PM|#

Women could be jailed and flogged for showing too much in 1790. It was a regular Saudi Arabia.

Those were the days.

No Name Guy|6.24.08 @ 7:28PM|#

I think the more interesting (and scarier) contrast is that so-called "strict Constitutionalists" are very nearly always the same people opposing any barriers to the expansion of *presidential* power, as if that power were the only one of the federal government that was completely unrestricted."

Not I.

Joe, no city or state today would ever let a proposal for flogging even come up for a vote. A constitutional interpretation really isn't necessary there.

|6.24.08 @ 7:32PM|#

Bull shit.

You don't think they'd flog people for drug dealing in parts of Mississippi?

No Name Guy|6.24.08 @ 7:35PM|#

Joe, I'm in the South and someone brought up bringing back flogging for drug dealing.

He was laughed out of the State Senate. So, no.

No Name Guy|6.24.08 @ 7:37PM|#

Actually in many ways being flogged is less cruel than being placed in prison for 30 years, but thats beside the point.

I'd take 100 lashes over 30 years, for sure.

|6.24.08 @ 7:40PM|#

He was laughed out the state senate because the procedure has been declared unconstitutional for over a century, leading to its being relegated to the dust bin of history.

Judge Roy Moore of Alabamastan|6.24.08 @ 7:41PM|#

Women could be jailed and flogged for showing too much in 1790. It was a regular Saudi Arabia.

Good idea.

No Name Guy|6.24.08 @ 7:44PM|#

You really think Alabama is comparable to Saudi Arabia or Pakistan? Wow, no regional bigotry there! None at all.

|6.24.08 @ 7:46PM|#

Nope. Read that again.

I was talking about the 1790s, and the laws were the same in Boston.

Nice itchy trigger finger on the victimology, though. Did you borrow that from Rev. Al?

No Name Guy|6.24.08 @ 7:48PM|#

It was directed at whoever made the "Alabamastan" post.

It'd be like someone posting as "Ted Kennedy of the Democratic Socialist Peoples Republic of New England" and then endorsing gulags.

Justice Scalia|6.24.08 @ 7:52PM|#

I actually support imprisoning the homo's for sodomy even on an illegal police entry.

The Saud's have nothing on me.

No Name Guy|6.24.08 @ 7:56PM|#

I don't support a very loose interpretation of the Constitution because, who knows? The feds might do something crazy like usurp the power of the states to regulate drugs and outlaw drugs they don't like for spurious reasons without the required Constitutional Amendment.

Nah. That'd never happen. Too crazy.

Richard Nixon|6.24.08 @ 8:06PM|#

Yeah, the party of Law and Order is pretty proud of the Controlled Substances Act.

It was some goddamn fine power grab on my part - and no doubt helped win my reelection.

|6.24.08 @ 8:12PM|#

Oops, sorry, NNG.

So, uh, dontcha just hate those itchy-trigger-finger people?

They suck, huh?

*blush*

|6.24.08 @ 8:14PM|#

Oh my God oh my God oh my God!

Mr. President, there's something I always wanted to ask you:

What's John Foster Dulles REALLY like?

|6.24.08 @ 8:17PM|#

Does someone recognize that a loose interpretation of the Constitution leads to bad consequences? That would be, like, cool, man.

Naga Sadow|6.24.08 @ 8:17PM|#

Damn you Nixon and your "Silent Majority"!!!!!!!

Richard Nixon|6.24.08 @ 8:22PM|#

Dulles?

Perle and Feith were just goddamn worthless Jews compared to him.

Look who got the Medal of Freedom for fucking over Iran for their oil - that should tell you something.

John Kerry|6.24.08 @ 8:23PM|#

I'm scared of the Heller decision, whatever it is.

If they rule in favor of bearing arms I expect our Democrat controlled government to issue "machine gun stamps". Gun ownership, like abortion, isn't much of a Constitutional right for those who can't afford it.

|6.24.08 @ 8:40PM|#

Does someone recognize that a loose interpretation of the Constitution leads to bad consequences?

Brown v. Board, mofo!

Naga Sadow|6.24.08 @ 8:45PM|#

Joe,

In recognition for your valour in battle today, I present to you a native word for your use. MOFI-ACKA. All one word. This is how DJ's in Mississippi say motherfucker on the radio.

|6.24.08 @ 9:08PM|#

"Joe, no city or state today would ever let a proposal for flogging even come up for a vote. A constitutional interpretation really isn't necessary there."

I hate this argument...We are beyond that so the Court should ignore the possibility...The question is, is the possibility in question a violation of the principles of the Constitution" not "well, we don't REALLY mean it...", what are the PRINCIPLES of the document?

|6.24.08 @ 9:26PM|#

just saw this posted today. it's like a primer on how to read justice scalia's vote on dc v heller whenever it comes down: www.straightrecord.com/scalia. you won't like it, of course

|6.24.08 @ 9:54PM|#

practice judicial "modesty," a respect for precedent

Fuck precedent. Any opinion should only have respect if it was reasoned as soundly as possible. It is hard to believe that cases like Korematsu, Plessy, Kelo, Raich, Wickard, etc. were reasoned validly. If it is wrong, what is the big scary thing about over turning in it with a better reasoned opinion?

Regarding Joe and NNG's pissing match, I think that argument is misplaced. We have had few really strict constructionist. The only one I can think of is Hugo Black.

Article I, Section 8 has this little gem:
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes ?

It is hard to believe that what this was meant to mean is what it means today which is congress can do whatever the fuck it wants.
IMHO, this text seems only to allow congress to regulate how trade is regulated. Like maybe uniform standards. Maybe the feds could pass what is comnonly know as the uniform commercial code, but that is it.

I doubt there have been any justices that have interpreted this passage this narrowly.

BTW, I say reasoned as well as possible because I think words like "reasonable" make it impossible to have complete validity. Such decisions will always have a tad of value bias. But they could at least get the form right.

|6.24.08 @ 10:08PM|#

All of my friends (now attorneys) thought it was funny that I said I wanted to see Wickard overturned.

I didn't see the humor.

alisa|6.24.08 @ 11:14PM|#

Troy: I'm not so sure about that. Citizens are best off when the law is fairly predictable in its interpretation. I don't want the meaning of a given law swinging widely every time a new judge is appointed -- uncertainty has a cost. I agree there are times when the established interpretation is profoundly wrong (like Plessy). In those cases, radical change makes sense; I just think those cases are rare. Throwing precedent out the window would make judges a bit too powerful for my taste.

Interesting piece of info from Cass Sunstein: if "radical" is defined quantitatively as overturning previous court decisions or striking down laws, then strict constructionists are more "radical" than loose constructionists.

MJ|6.25.08 @ 7:03AM|#

"Liberals ought to applaud this instinct because, even if Barack Obama gets to appoint the next justice or two, it's the only thing standing between them and a Court eager to roll back progressive reforms."

That's the money quote. The Left is only for judicial restraint when it protects their pet precedents like Roe v. Wade and affirmative action. Everything else is on the table. They do not have a principled position here, just a tactic to defend their gains which they discard when it is convenient.

|6.25.08 @ 8:38AM|#

I thought "judicial modesty" meant you wear something under the robe.

And joe knows that strictly interpreting the Constitution doesn't mean rolling all laws back to 1790. He's just doing that "willfully ignorant" song and dance. You know, the one he yells at everyone else about when they try it?

Stick to South American dictator apologetics, joe. It's your strong suit.

|6.25.08 @ 9:27AM|#

"name for me one movement whose central platform was the need for a "more strict interpretation" of its society's founding document that was scary or radical."

How about Al Queda?

|6.25.08 @ 10:08AM|#

And joe knows that strictly interpreting the Constitution doesn't mean rolling all laws back to 1790.

No, only those ones - like every single one of the examples I mentioned - that were struck down based on modern interpretations of the Constitution, which were at odds with the original interpretation.

I trust that if SugarFree could put together a reasoned argument against what I've written, he would have done so.

|6.25.08 @ 10:25AM|#

joe,

Why put up a reasoned argument when you always re-define the question to invalidate counter-arguments? You can't argue with people who constantly act in bad faith. I'm just here to point out that you're being a hypocrite and everyone is being a tad stupid by responding to you.

Go ahead and call me a whiner, or suggest that I don't read well, or that refusing to engage you means I can't come up with an argument, or that I'm try to make it all about you, or one of the other dozen cheap rhetorical tricks way, way too many people fall for around here.

The people who do counter your arguments will never change your mind because you already have all the answers, so most people just give up. All you are doing is punching a baby and claiming yourself heavyweight champion of the world.

|6.25.08 @ 10:36AM|#

911, we need a waaaaaaabulance down here.

I'm just here to point out that you're being a hypocrite and everyone is being a tad stupid by responding to you.

Sounds a lot easier than countering my argument.

|6.25.08 @ 10:56AM|#

I mean, name for me one movement whose central platform was the need for a "more strict interpretation" of its society's founding document that was scary or radical.

The anti-abortion movement?

"A living constitution is a dead constitution"

A pithy way of saying that a Constitution that can be bent to any transient political trend is no Constitution at all. I like it.

Women could be jailed and flogged for showing too much in 1790.

I'm gonna need a link on that. At least the flogging bit.

In any event, any such laws were not federal laws, and would not have been violations of the Constitution before the Fourteenth Amendment applied this part of the Eighth Amendment to the states. Try again, joe.

Since people in 1790 weren't certain that jailing people for criticizing the government violated the First Amendment - since it was a hotly debated issue at that time - then we can't say the First Amendment definitively forbids that.

Just because there was a division of opinion in 1790 doesn't mean in was Constitutional in 1790. In fact, SCOTUS never ruled on the Alien and Sedition Act of 1798, and such notables as Jefferson and Madison argued they violated the First Amendment. Try again, joe.

FirstFreedom|6.25.08 @ 11:03AM|#

IMHO we do not want the Supreme Court deciding what the Constitution means as a "living document" and interpreting it they way they want it to fit with political affiliation, conservative or liberal. It should be a "strict constructionist" interpretation of they way it was intended when written.

The Constitution is indeed a living document, but changes only through the "will of the people" in the form of amendments. This has worked as intended at least 27 times. We do not need judicial activism on either side; we need legal scholars who are well grounded in the law, history, and the intent as expressed in the Federalist Papers and other recorded debate from that time. If an article or amendment does not meet current requirements, amend the Constitution to meet the needs. We did that with Amendment 18 and reversed Amendment 18 with Amendment 21. The system works.

My personal opinion is the Second Amendment grants an individual right. I believe our Founding Fathers saw personal weapon ownership as a right to ensure individual defense, hunting for food, and for the collective defense. It was their own private ownership of weapons that armed the Revolution in the beginning. If it were only to ensure militias, that requirement was already met with the main body of the Constitution in Articles 1 and 2.

We do not need a Police State where only the government has weapons. While The Nazis did not initiate gun control in Germany, they certainly used it to their advantage to disarm their opponents. I loved the line in "V for Vendetta": ""People should not fear their government, their government should fear the people."

|6.25.08 @ 11:12AM|#

OK, fine.

OTHER THAN the anti-abortion movement and al Qaeda, can anybody name a movement devoted to a "stricter interpretation" of its society's founding document that turned out to be scary or radical?

I'm gonna need a link on that. At least the flogging bit. I see where you're going with this, and SHAME ON YOU! ;-)

Try again, joe. OK. Replace "1790" with "1870" and "flogging" with "imprisonnment."

Just because there was a division of opinionin 1790 doesn't mean in was Constitutional in 1790.

Try READING again, RC, because I didn't say it was Constitutional. I said it was disputed. If the "originalist" view controls, we cannot use the First Amendment to strick down laws against seditious speech, because that was not the "originalist" view.

robc|6.25.08 @ 11:13AM|#

A living constitution is a dead constitution

I mentioned above that I dont know who originally said it. From a google search, the only reference I can find to it is ... Dr. Ron Paul.

Huh, I should have known that. I have been using the quote for years, I probably got it from someone else quoting him. Then again, it still may not be original to him.

robc|6.25.08 @ 11:15AM|#

joe,

the "originalist" view.

As RC pointed out, Madison thought seditious speech was protected. You cant get more "originalist" than the guy who wrote (at least the rough draft) the frickin Bill of Rights.

tarran|6.25.08 @ 12:12PM|#

I'm puzzled,

Why are people blabbing about foundational documents of society in a discussion about the Constitution?

The Constitution didn't 'found' (whatever that means) U.S. society which predates it by a good 100 - 150 years. Furthermore it has little to do with U.S. society; the state != society. The state is a small part of society.

?!?