One Libertarian's Take on John Roberts

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Libertarian legal eagle Randy Barnett says this about John Roberts in a SF Chronicle analysis piece by Contributing Editor Carolyn Lochhead:

"It doesn't encourage me that a judge doesn't have a philosophy," said Randy Barnett, a professor of law at Boston University and self-described libertarian who argued, and lost, the California medical marijuana case Raich vs. Gonzales before the court in the last term. "The alternative to a comprehensive judicial philosophy is to take one from Column A, one from Column B, and one from Column C, mix it up with a pinch from Column D, and you can reach whatever result you want."

Whole story here.

Barnett participated in our July ish survey of lib picks for the Supreme Court. Still waiting for the decision in Raich at the time, he chose not to name his favorite sitting justice or his top nominees. But he did name Rufus Peckhman as one of the best in Supreme Court history. The whole Reason survey is here.

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  1. Barnett is right on. Shudders went down my spine when I heard that Joe Biden said Roberts does not “appear” to be an ideologue.

    Just as a neurotic believes that the facts of reality will vanish if he refuses to recognize them – so, today, the neurosis of an entire culture leads men to believe that their desperate need of political principles and concepts will vanish if they succeed in obliterating all principles and concepts. But since, in fact, neither an individual nor a nation can exist without some form of ideology, this sort of anti-ideology is now the formal, explicit, dominant ideology of our bankrupt culture.

    This anti-ideology has a new and very ugly name: it is called “Government by Consensus.”

    If some demagogue were to offer us, as a guiding creed, the following tenets: that statistics should be substituted for truth, vote-counting for principles, numbers for rights, and public polls for morality – that pragmatic, range-of-the-moment expediency should be the criterion of a country’s interests, and that the number of its adherents should be the criterion of anidea’s truth or falsehood – that any desire of any nature whatsoever should be accepted as a valid claim, provided it is held by a sufficient number of people – that a majority may do anything it pleases to a minority – in short gang rule and mob rule – if a demagogue were to offer it, he would not get very far. Yet all of it is contained in – and camouflaged by – the notion of “Government by Consensus.”

    This notion is now being plugged, not as an ideology, but as an anti-ideology; not as a principle, but as a means of obliterating principles; not as reason, but as rationalization, as a verbal ritual or a magic formula to assuage the national anxiety neurosis – a kind of pep pill or goofball for the “non-boat-rockers,” and a chance to play it deuces wild, for the others.
    A. Rand, “The New Fascism: Rule by Consensus,” in Capitalism: The Unknown Ideal.

  2. Bah. No judicial nominee from the right will ever appear to have a philosophy until after confirmation.

  3. What a dishonest piece of crap. The only alternative to being an ideologue is to be corrupt? It isn’t possible to consider competing interests, you have to choose one and spend your life singing “Be True to Your School?”

    Seems to me that most of the reaching for whatever result you want has been done by the most ideological judges.

  4. In all fairness to Roberts, this is misinterpreting how he represented his judicial approachl he did not say that he pinches from column A, a little from B, etc., but interprets the constitution based on how the prevailing passage was written. Some passages are explicit, others require interpretation. So that he may take an originalist approach for certain clauses, but interpret others.

    Sounds reasonable to me. I think you could argue that the framers intended it to be this was, and by following this approach you’re echoing their intent.

  5. Jason – Janice Rogers Brown sure as hell seemed to have a coherent philosophy, but, as Jonathan Rauch pointed out, Republican senators didn’t (for whatever reasons) defend her philosophy, only her life story and her status as “the President’s nominee.” I wish this Roberts guy had half JRB’s spine, but I’m not holding my breath.

  6. Seems to me that most of the reaching for whatever result you want has been done by the most ideological judges.

    Replace “ideological” with “principled” and this sentence doesn’t seem so convincing.

    The problem with Roberts is that he has no apparent judicial philosophy, no principles, nothing to which he can point and say “Well, much as I might like to rule one way, I really can’t because it would be inconsistent with my principled beliefs.”

    The very epitome of an unprincipled (in this sense) jurist is Sandra Day OConnor. Her contribution to jurisprudence and the Court was disastrous in many ways – she made the Court as a whole unpredictable, result-oriented, and thus more political. Another one like her we don’t need.

  7. ‘Replace “ideological” with “principled” and this sentence doesn’t seem so convincing.’

    That’s just it, RC – you can’t replace “ideological” with “principled.” There are principled and unprincipled (from the pov of judical integrety, ie, not reaching for the result you want) ideologues, and there are principles and unprincipled non-ideologues.

    This writer is trying to steal a base on behalf of right wing jurisprudence by asserting that it is not possible to be principled while drawing one’s judicial philosophy from more than one school of thought.

  8. Adam:

    As I said then, it should be perfectly obvious from the awesome electability of strident libertarians why the Republicans won’t go on record defending strong libertarian rhetoric. I like the rhetoric, but I am not under any delusions that it is a plus to anyone other than the converted.

  9. You guys have more faith in the court as anything other than a blatantly political organization than I do. I expect that every judge is outcomes oriented. The good news is that they are working with established law that says if they ever overturn any law on constitutional grounds, they are guilty of judicial overreach.

    Confirmations should look something like:

    “Mr. Roberts, can you wield this rubber stamp on federal intrusiveness into every aspect of our lives, and are you willing to use it?”

  10. John Roberts is a common name.
    Cokie’s husband is that, and he’s jewish for chrissakes.
    There was also a pampered twerp I knew as a kid who had an enormous Lionel train lay-out. Do you think he would let me as much as just toot the fuckin’ whistle on the locomotive that smoked, courtesy of his special, expensive little pills?
    He had a strange smile too.

  11. If the worst that can be said about Roberts is that he’s a “one from column A, one from column B” jurist (in other words, tempermentally equivalent to O’Connor), then at least we haven’t _lost_ anything if he gets confirmed. (It might be worth mentioning that O’Connor sided with the good guys against the majority in Kelo and Raich…)

    Would I prefer Janice Rogers Brown? Of course I would. I for one hope that she gets named when Rehnquist finally retires.

    But if the worst realistic outcome is that things stay the same (and it does look that way), I’m not inclined to get angry and protest the choice.

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