George Will's Good Questions for Roberts

Columnist George Will offers up an excellent script for Supreme Court Chief Justice John Roberts' nomination hearing. Noting that Roberts has said he has "no overarching, uniform philosophy," Will lays out a series of questions that would make for a great hearing of the guy. They include the following:

With its Dred Scott decision of 1857, the Supreme Court sought to solve the sectional crisis by ruling that under the Constitution slaves and their descendants could never count as U.S. "citizens." Is it not arguable that this decision was (a) originalism and (b) activism?

[Oliver Wendell] Holmes, advocating judicial restraint in the name of majoritarianism, said: "If my fellow citizens want to go to Hell I'll help them. It's my job." In the past decade alone, the Rehnquist Court, in an unprecedented flurry of activism, has struck down more than three dozen enactments by the people's representatives in Congress. Are you for such judicial activism, or are you for helping us go to Hell? Or is this the fallacy of the false alternatives?

Whole thing, well worth checking out, here.

And let me direct readers back to Reason's July ish, chock full o' Supreme Court-related material, including tales of dementia on the High Court, an analysis of the Rehnquist's court legal legacy, a survey of libertarian legal theorists on the Court's best justices (past, present, and future), and the case for libertarian judicial activism.

It's all online, plus a Warholized print of the Supes, here.

Comments

[gaius marius]

Oliver Wendell Holmes, advocating judicial restraint in the name of majoritarianism, said: "If my fellow citizens want to go to Hell I'll help them. It's my job."

i think it's about time someone in msm called originalism by its right name.

[Jeff P.]

Nothing says legal ethics like "no overarching, uniform philosophy."

[joe]

Jeff, I'd be more worried about the ethics of someone who took a seat on the court with the intent of furthering a partisan, ideological, or political end.

Just do your job - that's the highest ethic a Supreme Court Justice can pursue.

[JMoore]

That's true as far as it goes, joe. It's defining the job that causes trouble.

[thoreau]

I agree with JMoore. There are many questions that practically answer themselves once you get agreement on the definitions.

If I happen to agree with a Justice on what his job description should be, I'll look at what he does and say "Nope, no ideology there, just a good judge!" If I disagree with him on what his job description should be (or how to interpret the job description), I'm more likely to see ideology at work.

[R C Dean]

Trust me, everyone has an overarching philosophy for getting through life, interpreting texts, whatever.

The dangerous ones are the ones who are unaware of what theirs is, or deny it.

[Jason Ligon]

I can't help but think that it is the purpose of a body empowered with judicial review to check majoritarianism. The other popular theory, the one advanced by mr marius, seems to be that judicial review is a check primarily on whimsy. The role of the USSC in this view is to prevent us from sacrificing law as we know it in the face of crisis and knee jerking.

I'm okay with this second view, but it must be noted that it is not identical with the notion of checking majoritarianism, and the two can sometimes come into conflict. Whimsy by definition only describes new or unestablished law. Majoritarianism describes established or unestablished law, and the notion of checking majoritarianism implies that there is some other appropriate standard than what a majorty wants or is used to. Checking whimsy is conservatism for the sake of conservatism, and as such relies on precedent for notions of appropriate law.

Checking majoritarianism is applying a standard other than the historical, perhaps a conceptual conformity with constitutional dictates, for guidance.

Yes, this distinction is muddy. There is history in any interpretation of the constitution, and our accepted law was in theory informed by the constitution. My preference is that if these two views of the role of the courts come into conflict, we stick to checking majoritarianism.

I am unconvinced that the strictly conservative view is the appropriate one for a body designed to check majoritarian wants. Specifically, I don't think that we are in a place where an appeal to accepted law checks the majority at all. We have cast aside most significant checks on regulation. Appealing to accepted law is of no use when accepted law is this broad.

Not that I think any 9 member body can effectively check majoritarianism anyway. I've become something of a skeptic along these lines over the last couple of year. It doesn't matter how we set it up, we will get majoritarianism in the end.

[MP]

gaius,

I continue to reject your stance that Original Meaning = Majoritarianism. I reject this on the basis that Scalia does not truly practice the Randy Barnett view of Original Meaning. Your essay does a great job showing the flaws in Scalia's stance, but his stance is still much better characterized as Original Intent rather than Original Meaning. Originalism, unfortunately, is not a specific enough term when addressing one's Constitutional viewpoint.

All,

I still don't understand why judicial nominees feel it is morally legitimate to come before Congress and be unable to clearly state their Constitutional interpretive doctrine. That's simply a crock. George Will is dead-on with his line of questioning.

BTW gaius, Rome on HBO is way cool.

[thoreau]

Jason-

I would agree that if a notion enjoys majority support for a long enough period of time then it will eventually be adopted. Which is why I agree that the best that a 9 member counter-majoritarian body can do is thwart "whimsy", or passing trends. One way or another, a persistent majority will get its way, but at least the most destructive transients can be thwarted.

Better than nothing.

Another point to keep in mind is that in addition to the dozen or so high profile issues that the Court faces every year, most of their time is spent on things far more technical and mundane than checking majoritarianism or debating strict construction vs. evolving standards or whatever. They handle 70+ cases per year involving rather mundane issues. One circuit interprets a somewhat ambiguous clause in the law one way, another circuit interprets it another way, both are reasonable ways to handle the ambiguity, but consistency is desired, so the Supremes iron it out. Frequently these cases are decided by 9-0 or 8-1 majorities.

[Jason Ligon]

"One way or another, a persistent majority will get its way, but at least the most destructive transients can be thwarted."

I dunno. My concern is that once accepted law takes on a certain monstrous form, appeal to precedent is actually more harmful than allowing transients through, if you have to choose between the two.

I suspect it has to do with one's perception of the resilience of society over the long run. mr marius believes we are millimeters from a hobbesian nightmare, so stability matters a lot. I find myself a little more philosophically ... funky. I tend to think that people will get over disruptions and get on with things. While I would be the first to admit that people are crappy and looting happens when the lights go out, I don't believe that the the implication is to ensure that lights never go out regardless of cost. A riot isn't a good thing, but it can be an ancillary event to something that is good and necessary in the long run.

I might note that the only alternatives to upsetting the apple cart within the system are accepting your fate or upsetting the apple cart outside of the system.

[Shelby]

In the past decade alone, the Rehnquist Court, in an unprecedented flurry of activism, has struck down more than three dozen enactments by the people's representatives in Congress.

Nick, surely your tongue is in your cheek? The fact that George Will claims something is "judicial activism" doesn't make it so. Or is it "activism" to find a conflict between the Constitution and an act of Congress? Surely the term means something like "inventing new rights and legal powers without a textual source." At least, that's how the legal community has used it for the past few decades.

[Shelby]

Sorry, meant to de-bold after "claims".