Stare Decisis

by Jeffrey Rosen | September 19, 2005

MOMENTS AFTER PRESIDENT BUSH nominated John Roberts to be chief justice of the United States, liberal interest groups again urged Democratic senators to vote against the nominee. "Roberts unfit to be chief justice," People for the American Way charged in a hyperbolic press release. The group had opposed Roberts's nomination to replace Justice Sandra Day O'Connor on the grounds that he would seek to limit Congress's ability to protect the environment and prevent discrimination, and it stressed, "To an even greater degree, [his] record makes him unfit for the position of Chief Justice." At the same time, Democratic senators on the Judiciary Committee agreed that Roberts's nomination as chief deserved extra scrutiny. "If the White House wants to elevate him to an even higher position as chief justice, I think it's a higher standard of inquiry," said Senator Richard J. Durbin, the Illinois Democrat.

But the claim that Roberts would move the Court to the right as chief justice--and that he therefore deserves greater scrutiny--is transparently unconvincing. Far from being a proponent of resurrecting the limitations on federal power that some conservatives call the Constitution in Exile, Roberts's memos and judicial opinions suggest, in fact, that he takes a more expansive view of congressional power than O'Connor. Although liberals canonized O'Connor as a moderate after she announced her retirement, they forget that she was among the Court's most enthusiastic and activist proponents of striking down both federal and state regulations. Chief Justice William Rehnquist, by contrast, was a more deferential conservative, less likely to strike down regulations in the name of economic rights.

On many questions involving federalism, Roberts's views resemble those of Rehnquist rather than O'Connor, and, in this sense, he would not change the balance of the Court. And, in other areas of concern to liberals--such as his willingness to uphold precedents with which he disagrees--Roberts may turn out to be more concerned about judicial stability and humility than either Rehnquist or O'Connor, which suggests he might even move the Court to the left. The truth is that Roberts's nomination as chief justice was a peace offering from Bush to Democrats and a gift to principled liberal and conservative defenders of judicial restraint. Rather than listening to the siren song of ideological interest groups who are urging them to cast a symbolic but futile vote of opposition, Democrats should instead vote to confirm Roberts as chief justice with gratitude and relief.  

THE MOST NOTABLE AREA WHERE Roberts would be more deferential to Congress than O'Connor relates to Congress's ability to condition the grant of federal funds on a state's agreement to respect federal law. This is Congress's most significant power over the states--just as significant as its power to regulate interstate commerce, if not more so. For example, federal civil rights laws that forbid state programs and institutions receiving federal funds from discriminating on the basis of race and sex depend on a broad interpretation of Congress's spending power. Similarly, Congress can use its spending power to circumvent the Supreme Court's attempts to strike down federal laws under the Commerce Clause. For example, after the Supreme Court held in 1995 that a federal regulation prohibiting guns in schools exceeded Congress's power to regulate interstate commerce, President Clinton pointed out that Congress could achieve the same result by denying federal funds to the handful of states that refused to prohibit guns in schools on their own.

Along with Justice Clarence Thomas, O'Connor was the Rehnquist Court's most energetic critic of Congress's efforts to impose conditions on federal grants to the states. In 1987, she dissented from a crucial case that upheld Congress's power to deny a portion of federal highway funds to states that refused to adopt 21 as the minimum drinking age. By contrast, Roberts, who participated in the case as an advocate, came to agree with the Court's majority. In a 1999 interview on public radio, Roberts said, "The basic principle is, if you pay the piper, you get to call the tune. And I think the federal government could say, 'If we're giving you money, and it's related to the area in which we're trying to get you to waive sovereign immunity, we can require you to consent to suit as a condition of getting those funds.'" This suggests that Roberts would give Congress more latitude than O'Connor to impose conditions on federal funds.

Roberts confirmed this impression as an appellate judge. Last year, he joined a majority opinion by the scrupulous and moderate Judge Merrick Garland holding that Congress could force the Washington Metropolitan Area Transit Authority to waive its immunity from federal discrimination suits as a condition of accepting federal transportation funds. In that case, an electrician claimed he had been fired from the transit authority because of his bipolar disorder, and Roberts joined Garland in upholding the man's right to bring the suit, over a dissent from Judge David Sentelle, a vigorous proponent of the Constitution in Exile.

Liberal groups who fear Roberts's views on congressional power have focused on a now-famous 2003 opinion in which he questioned the constitutionality of applying the Endangered Species Act to protect a rare species of "hapless toad. " According to People for the American Way, "[B]y focusing on the purely intrastate domicile of the particular endangered species, Roberts indicated that he may well subscribe to an extremely constricted interpretation of the Commerce Clause recently rejected by a narrow majority of the Supreme Court." But Roberts indicated no such thing. In the hapless toad case, he pointedly declined to join the radical dissenting opinion of Sentelle, and he suggested that the Endangered Species Act might be able to protect the hapless toad under other theories.

Moreover, Roberts's repeated paeans to the importance of judicial deference to legislatures makes it unlikely that he would suddenly reveal himself as an enthusiastic partisan of the Constitution in Exile. When I interviewed Roberts in 2002, he made it clear that he thought the Court should rarely strike down regulations under the Commerce Clause. "Do I think it's a good thing that at least once every 30 years, the Supreme Court says something that motivates Congress to focus a little more closely on why it's regulating in a particular area? Yes, I do think that's good," he told me. But he went on to emphasize, "There has to be a lot of legal room in the joints, and the Supreme Court has to remind itself on a daily basis that it occupies tenuous ground.''  

THE FINAL ARENA involving the Constitution in Exile where Roberts seems to the left of O'Connor, and perhaps even Rehnquist, involves Congress's power, under the Fifth Amendment, to take private property with just compensation. As a law student, Roberts wrote a note rejecting a rigid libertarian reading of the Takings Clause. "[T]he words of the clause ... are incapable of being given simple, clear-cut meaning," he wrote. "Indeed, the very phrase 'just compensation' suggests that the language of the clause must be informed by changing norms of justice." At his confirmation hearing for the D.C. circuit, Roberts joked, "I would, if confirmed as a circuit judge, follow Supreme Court precedent in this area, as in any other. I would not follow my student note; no one else has." Nevertheless, Roberts won the admiration of environmentalists as an appellate advocate when he argued that a development freeze in Lake Tahoe did not unconstitutionally take the property of local residents. The Supreme Court agreed with Roberts in a 2002 opinion that, according to Douglas Kendall of the liberal Community Rights Counsel, "stopped the takings movement in its tracks." Writing in The Washington Post, Kendall praised Roberts for writing "the best legal brief I've ever read in a takings case" and for his "ability to see both sides of a divisive issue." Nor was Roberts merely representing environmentalists as a hired gun: In his Senate questionnaire for his appellate nomination, he emphasized that the Lake Tahoe opinion "shows a robust regard for the need for government regulators to be afforded broad flexibility in undertaking vital environmental measures."

In addition to Roberts's views on congressional power--which will be properly scrutinized by Judiciary Committee Chairman Arlen Specter--Democrats are concerned about whether he will vote to reverse 5-4 decisions involving abortion, affirmative action, and school prayer, in which O'Connor was in the majority. Ultimately, Roberts's votes in those cases will depend on his views about what the lawyers call stare decisis, or "let the decision stand," and those views are not likely to be fully formed until he actually joins the Court. (As a lower court judge, he had no need to develop a theory about whether or not to follow Supreme Court opinions with which he disagreed; he was obliged to do so.) In meetings with senators, however, Roberts has repeatedly praised the values of judicial humility and stability.

In his Supreme Court questionnaire, he wrote, "Precedent plays an important role in promoting the stability of the legal system, and a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath." Roberts appears to care much more about the institutional legitimacy of the Supreme Court than, for example, Thomas, who, according to his colleague Justice Antonin Scalia, will vote to overturn any precedent with which he disagrees. Roberts told the Senate that "a judge needs the humility to appreciate that he is not necessarily the first person to confront a particular issue." By contrast, neither Rehnquist nor O'Connor was noted for their humility in following precedents with which they disagreed.  

OF COURSE, ROBERTS is unlikely to be to the left of Rehnquist and O'Connor in all cases, and, on several issues, Democrats (as well as Republican libertarians) would be perfectly justified in questioning him closely. He appears to take a far broader view of police powers than O'Connor. And his inclination to defer to the executive in the war on terrorism may surpass that of Rehnquist, who joined O'Connor and the pragmatic liberal justices in holding that enemy combatants who are U.S. citizens could not be detained indefinitely without access to lawyers and fair hearings (see Marisa Katz, "Power Tool," page 14). Even in these areas, however, Roberts's views still seem closer to the views of moderate Democrats like Charles Schumer (who is consistently tough on terrorism and crime) than the more libertarian candidates on Bush's shortlist, who tend to support limiting federal power across the board.

It also seems possible (although not certain) that Roberts would vote to reaffirm at least some of the opinions that O'Connor joined in cases involving the culture wars. On what grounds, then, could Democratic senators vote to oppose his nomination? Aside from a desire to pander to liberal interest groups, Democrats could argue that senators should feel free to oppose any Supreme Court nominee whose constitutional views they can't embrace in all respects. But this is a novel and utopian standard; it would be politically foolish for Democratic senators to embrace it. Such a rigorous standard would come back to haunt Democrats in the imminent confirmation hearings for O'Connor's successor. And it would cast a pall over the confirmation hearings of future Democratic nominees, if Democrats win back the White House sometime in the next century. Democratic senators should recognize that, although they may not agree with every one of Roberts's views, they and the country almost certainly couldn't do better.

This article appeared in the September 19, 2005 issue of the magazine.

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