John Roberts and the "Dictatorship of Tolerance"


The bombings in London, and Tony Blair's tough-on-terror crackdown on liberalism, have caused me to ask for a punditry mulligan re: questions for Supreme Court nominee John Roberts. For me, the judicial issue that matters most of all is, how will the Supreme Court respond after the next catastrophic attack on U.S. soil prompts the Executive Branch to seize still more power and shake off still more scrutiny of its actions, while a hooting Zell Miller chorus howls for the blood of the ACLU and insufficiently deferential Republican judges.

My crude fourth-hand take on Roberts is that he's impressively bright, one of those shiny-eyed God-fearing conservatives, and (perhaps most relevant of all) an extremely nimble navigator of Beltway judicial politics from the Republican side of the aisle. If the latter gene proves dominant, and God forbid some jackhole blows up LAX, I'd worry that a politically sensitive judge would be more persuaded by the prevailing vibes coming from his party and the general public, than by the checks on power written into and suggested by the Constitution.

I don't expect any nominee or friend of George W. Bush (or Bill Clinton, for that matter) to be persuaded by the unpopular libertarian argument that freedom actually makes us safer, not more vulnerable. That concept isn't even popular among many self-described libertarians, some of whom have spent the last three-plus years politely debating bogus "ticking time-bomb" scenarios, mainstreaming the case for ethnic-based internment, and uncharacteristically treating liberty and security as a zero-sum game. We've seen already how a few score dead in the UK can lead to quick government power-grabs and popular jeremiads against "the theocracy of tolerance" (a phrase as alluringly inaccurate as the "the dictatorship of relativism"), and with that whole Anglo-American similarity we've heard so much about, it makes me ever-more grateful that we have a document that provides a brake against popular calls for illiberal measures.

So the best I can hope for is that the politically-savvy nominee be willing to make a deeply unpopular defense of the Constitution under the most trying of circumstances. Where's Bernard Shaw when you need him? Judge Roberts, terrorists have just raped and killed your family, friends, and half of Capitol Hill. Would you still believe in the Bill of Rights?