It Must Be The Robes

A few days ago, Slate's Dahlia Lithwick pondered several of the theories as to why so many Republican appointees to the Supreme Court--like Brennan, Warren, Blackmun, Powell, Stevens, O'Connor, Kennedy, and of course, Souter--wind up in the court's ideological center or left. Whatever the explanation, Ann Coulter may feel a touch of insomnia when she reads in today's LA Times that John Roberts worked pro-bono on behalf of gay rights activists seeking to strike down a Colorado law permitting employment and housing discimination against homosexuals. Jean Dubofsky, lead lawyer for the plaintiffs, described Roberts' advice as "absolutely crucial," adding:

"John Roberts…was just terrifically helpful in meeting with me and spending some time on the issue," she said. "He seemed to be very fair-minded and very astute."

Conservatives fretful about another Souter might be comforted by LAT reporter Richard A. Serrano's reminder that Roberts "has stressed…that a client's views are not necessarily shared by the lawyer who argues on his or her behalf." On the other hand, Roberts' emphasis on the distinction between his and his clients' views came up when he was trying to distance himself from criticisms he made of Roe v. Wade while working for the first Bush administration.

Comments

[Skeptikos]

The reason the conservatives worry, is that once someone becomes a SCOUTUS member, they have a hard time lying to themselves if they ask this question:

What would general G. Washington do if someone, with or without a warrant, came on his land and tried to cut down his hemp, you know, especially the plants that he was seperating the female ones from the male ones (in his farming logs, consistnent with growing for THC potency, but not for rope and paper making)?

He would shoot them dead. And then kick them for good measure. And then maybe shoot them again.

[bubba]

Supreme Court justices naturally become very pleased with themselves over the years. If the GOP could count on holding the presidency, they would do better to nominate old codgers who would die before shifting too far left.

The game theory doesn't look for for this strategy, as the Dems could counter by nominating young people who are already left. These would naturally serve for much longer periods of time.

[crimethink]

And now comes the part of the show where libertarians sing the praises of a law that restricted the free market.

I hope I'm wrong.

[Jason Ligon]

Justices continue to defer to congress because there is a deep felt conviction that the sky will fall if any significant change in interpretation occurs. Since the legislative trend is toward intrusiveness, that's what we get.

[Yogi]

This gives me some hope for Roberts. Whereas, you can claim the arguments you make for your employer are not your own, I would think that if you're doing pro bono work, that you would at least sympathize with the cause that you're working at no charge for. But, without knowing all the facts, who knows. Besides, Bush himself told a reporter off the record while running in 2000 that he didn't want to gay-bash, that it was wrong to do that. My theory is that he was just following Rove's instructions this last election.

[joe]

My theory:

Most of the time, people appointed to the Supreme Court so they'll be good little Republican activists develop over time a greater reverence for the law than for their party or political ideology. Most of the time, not all the time, as we all know.

I suppose this would apply to Democratic political activists on the court, but you don't see them nominated as much.

As far as Roberts goes, he seems to be a scrupulous, geeky government lawyer who's also a Republican. I wouldn't expect him to evolve a great deal, as he seems to have a mature loyalty to his legal principles already. Which would tend to mean he's not going to be much of a righty activist justice, either.

[joe]

See, and here I was thinking that the Supreme Court defers to Congress because they have respect for separation of powers among the coequal branches of government.

[Jason Ligon]

joe:

The implication is that they defer to congress on issues specifically related to limitations on congressional power. That sort of leaves the whole co-equal thing by the wayside.

[panurge]

The big problem our country has with SCOTUS appointments is that the public and the media spend far too much time quibbling over issues that rarely go before the court, like abortion and gay rights. The fact that Roberts worked so enthusiastically (and pro bono) for pro-gay rights clients makes him a little more appealing to me, but I still want to know more about the guy's views on the issues that really matter- free speech, property rights, taxation, privacy, etc. He is still a blank slate in those areas.

[crimethink]

panurge,

Well, his pro-gay-rights case was also anti-property-rights. So if the latter is the issue that really matters, he shouldn't be more appealing to you in the end.

[ChiacgoTom]

panurge,

I'd like to add "limitations to the powers of the executive" to your list.

[Adam]

At least Roberts didn't smoke dope. Only Presidents can smoke dope.

[crimethink]

joe,

No doubt, in your view, "greater reverence for the law" means taking the plain language of the Commerce and Takings Clauses, and the Second, Ninth, and Tenth Ammendments with a grain of salt?

[Adam]

People for the American Way have got to be shitting themselves. "Holy crap!! We want to oppose him..but..but..!!"

[joe]

Spit it out, crimethink.

Why is striking down Colorado's anti-gay ballot initiative anti-property rights?

And yes, I'm quite sure that your characterization of "taking the plain language of the Commerce and Takings Clauses, and the Second, Ninth, and Tenth Ammendments with a grain of salt" would include many, if not most, rulings by judges who display reverence for the law.

[crimethink]

joe,

Stop agreeing with me, it just pisses me off more. 😉

Property rights include the right to choose to whom you rent or sell. Striking down the CO initiative took away the freedom of association of property owners by forcing them to do business with people they would rather not deal with.

Before taking the easy route and denouncing me as a homophobe, allow me to mention that I would also be against laws forbidding discrimination against whites, Catholics, NRA members, or any of the other groups I myself belong to.

[joe]

Oh, I see. You're just deranged. 😉

[dead_elvis]

I wish the American people would get over themselves and realize that people are paid to do jobs, that occasionally means saying something that your *client* believes, not you. To think that someone could get to the point in life where they are ready to be a federal judge, or a senator, or president, and not have said some things that were representing someone elses point of view, is really ignorant. Like how Kerry was lambasted for how his Republican-Lite campaign rhetoric was inconsistent with his record in the senate- Hel-lo, He was representing a very liberal state.

[Jason Ligon]

joe:

In your view, does the SCOTUS have any responsibility to check federal authority? I know that sounds snarky, but I don't really mean it that way. It just occurrs to me that you really seem to like it when they strike down state laws and really seem to hate it when they would impose any testable limit on federal ability to regulate.

The local view would be that it is much more important to check the feds if you are going to choose only one of the two. Federalism and all.

[David T]

A fairly obvious answer to "why were most of these justices not conservative once appointed" is that most of the justices named were never that conservative to begin with. O'Connor had displeased the right-to-lifers while she was in the Arizona legislature; in the case of Souter there was no evidence of his conservatism except Sununu's assurances; Warren had been a liberal Republican governor of California; and why would anyone expect Brennan, a Democrat, to have been a conservative? With Kennedy, too, there was no real evidence he was a right-winger, and the only reason Reagan appointed him is that he was in a weak bargaining position with two nominees in a row defeated or withdrawn, and the Senate under Democratic control. Reagan had to get someone confirmable, quick.

It is true that O'Connor did vote to uphold regulation of abortions in her first decade on the Court but she never committed herself to overrule *Roe* entirely, and so it really should not have been surprising--especially considering her pre-court record--that when the issue finally became inescapable she declined to do do.

There are a few judges who did clearly "move left"--notably Blackmun. (Just as White and Frankfurter were more conservative than many expected.) But on the whole the notion that justices "move left" is based on unjustifiably wishful (or unjustifiably apprehensive) perceptions of how conservative they were to begin with.

[joe]

Of course the Court has a duty to check federal authority, both that of the President and of Congress, as well as that of the states.

I don't know where you got the idea that I'd take exception to that position - unless you decided that, since I didn't always agree with every check you'd like to see, I didn't support any such checks.

[Jason Ligon]

joe:

In your view, what test would be reasonable that would limit power of regulation under the Commerce Clause? Where is the line? What can't the EPA do to private property?

It isn't just that you don't agree with checks I'd like to see, it is that I don't know that I've ever seen a check you'd support in broad terms.

[joe]

Jason,

I don't know. It's not an area I've given a great deal of thought to.

The reasoning behind the Violence Against Women Act case made sense to me.

[Jason Ligon]

joe:

What? You mean everyone doesn't think about the destruction wrought under the commerce clause from the time they wake up shaking till the time they cry themselves to sleep over liberty lost? 😉

[crimethink]

Oh, I see. You're just deranged. 😉

Perhaps, but it doesn't mean I'm wrong. In any case, I thought I told you to stop agreeing with me...

[Hakluyt]

joe,

See, and here I was thinking that the Supreme Court defers to Congress because they have respect for separation of powers among the coequal branches of government.

They defer for political reasons as much as anything. Its as true today as it was for the Jay or Ellsworth courts.

In light of Wickard its hard to see where the power of the Congress under the commerce clause might stop. Also, in light of Raich its also obvious Wickard can be dug up any time a majority of the Court feels that its appropriate (it seems now to serve the same purpose as the Lemon test). It also feeds in Justice Scalia's crude majoritarian viewpoints. Indeed, as the majority and concurring opinions were really based on an ipse dixit, its not surprising that Wickard can be used so fluidly.

In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana. - Justice Thomas

crimethink,

There really isn't any plain language to the Ninth Amendment (indeed, I find the amendment to be largely a meaningless gesture).

The problem with the Colorado initiative (Amendment 2) at the heart of Romer is that it went farther than what you describe.

[joe]

Haklyut,

"They defer for political reasons as much as anything. Its as true today as it was for the Jay or Ellsworth courts."

I think that's the genius of our Constitutional system - they managed to create a structure in which the political interests of the players are advanced by adhering to the system of checks and balances. They didn't try to eliminate the ambition and turf-protecting among government officials, but put them to work.

[Hakluyt]

joe,

Well, that's the difference between puritanical and agrarian republicanism.

[joe]

That's an odd choice of terms, Haklyut, but I see what you're getting at. America vs. France, rebellion vs. revolution, consensus vs. imposition, pragmatic vs. utopian.

[Eric the .5b]

I happen to agree with the idea that people should be allowed to choose who they want and don't want to do business with.

But let's be straight (no pun intended). The law Roberts was fighting against was designed to permit one form of discrimination in a legal regime that banned other forms. I'm all for dismantling anti-discrimination laws, but the clear purpose of that law was to put a bulls-eye on a particular minority group, not to advance free association.

I think Roberts shows some promise.

[Hakluyt]

joe,

Well, its specialized terminology used amongst historians who study the period. I tend to drop down into the specialized terminology of historians a lot.

John Adams was a "puritanical" republican who argued for all manner of laws to produce a virtuous citizenry (e.g, sumptuary laws, etc.). The essential issue for them (in line with Montesquieu's thoughts) was the need to maintain a citizenry "private" virtue in general rather high. In a sense, their project wasn't all that different from the idea of creating a "new man" found in say Stalinism.

Whereas "agrarian" republicans argued that merely creating a government harnessed the various interests, etc. of people was enough. Madison is a good example of such a republican (this is reflected in the Federalist Papers).

Of course you don't want to confuse this with the "country party" or tory ideology that sprang from 17th century England. Or rather, you need to see that the "country party's" elements were to be found in both types of repulicanism. Also, while I present these concepts as absolutes, they're really just two ends of a spectrum.

Note that using the term republican was common in the early days of the republic and a much contested term (like many terms were - lots of flux in terminology, use of new terms, etc.).