Opening Argument – Why Must We Roll The Dice on a New Chief Justice?

National Journal

"We are rolling the dice with you, judge…. You’ve told me nothing, … as if the public doesn’t have a right to know what you think about fundamental issues facing them." 

Sen. Joseph Biden, D-Del., was voicing understandable frustration this week, as were other Democrats, about John Roberts’s refusal to disclose almost anything about his views on issues that might come before him as chief justice.

Roberts did carry the no-comment stuff to sometimes silly-seeming extremes, as have most previous nominees. But he had plausible reasons for refusing to announce his views on issues that might come before the Court: If judicial nominees go down that road, Roberts warned, confirmation hearings will become a "bargaining process," in which nominees will be pressured to "promise to do certain things in exchange for votes." This would undermine "the independence of the Supreme Court [and] the integrity of the judicial process."

Indeed, as detailed in my July 30 column, if senators can force judicial nominees to expound on the issues, then presidents will be tempted to demand similar disclosures in secret, pre-nomination screening sessions. Would-be justices and judges would feel pressure to make quasi-campaign promises first to the executive and then to the legislative branch. This development would hardly be a formula for putting people of integrity on the bench.

But there is undeniably something strange and undemocratic about conferring one of the nation’s most powerful offices upon a man who won’t tell us what he thinks. A man who could be setting national policy for the next 40 years on the most divisive issues we face, with no accountability, ever, to the electorate. A man whom the president chose in part because his views on the big issues are apparently conservative but largely unknown.

Why do we find ourselves in this situation? Is there anything good about it? Is there any way out of it?

The fundamental problem is that over the past 50 years, the Supreme Court has taken for itself more policy-making power than the Founders ever imagined. Alexander Hamilton called the judiciary "the least dangerous branch" in part because "the legislature"-not the judiciary-"prescribes the rules by which the duties and rights of every citizen are to be regulated."

That was then. Now the judiciary prescribes a great many of those rules-on abortion, religion, racial preferences, gay rights, commercial advertising, campaign finance, pornography, school discipline, patronage firings, police powers, and a vast of array of other issues. Just Wednesday, to pick a recent example, a federal judge in California barred classroom recitations of the Pledge of Allegiance, holding that the rather innocuous phrase "under God" is an unconstitutional establishment of religion. And this ruling was a fairly plausible reading of various Supreme Court precedents.

The vast expansion of judicial power has not been all bad. It began with decisions that were necessary to purge American society of injustices more intolerable than any facing us today. Brown v. Board of Education helped end the oppression of African-Americans by official segregation. Baker v. Carr and other Warren Court reapportionment decisions dismantled gross inequalities in voting power caused by egregious malapportionment of election districts. The school prayer decisions of the same era properly banned the coercion of schoolchildren to participate involuntarily in religious exercises. And so on.

But such heroics also infused in the judiciary a sense of its own infallibility, a tendency toward grandiosity, and a habit of enacting the justices’ own moral values and policy preferences in the guise of constitutional interpretation. The aggregate effect has been to lend credence to the "superlegislature" label attached to the Court by conservatives for decades and by liberals in the wake of decisions expanding states’ rights, curbing regulation of campaign spending, making George W. Bush president, and the like.

This is why things have changed so much since 1922, when the Senate unanimously confirmed Sen. George Sutherland of Utah a few hours after President Harding had nominated him to the Supreme Court. And since 1962, when Byron White was confirmed as a justice after a 15-minute, eight-question hearing.

Some of the Court’s more grandiose decisions have coincided with my own policy preferences, and have worn well in the court of public opinion. I would not want to see them swept aside. Indeed, in a distorted way, the Supreme Court has come to play something of the role that British statesman Edmund Burke (1729-1797) envisioned for legislative bodies, and that the Framers of our Constitution envisioned for the Senate.

Burke saw elected representatives not as conduits for transmuting public opinion or factional agendas into law, but as an aristocratic, quasi-meritocratic elite chosen to set wise, unbiased policies on complex issues about which most voters were (and are) ill-informed. "Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion," said Burke in his 1774 speech to the electors of Bristol.

James Madison wrote in Federalist 57 that we should elect as our representatives those "who possess most wisdom to discern, and most virtue to pursue, the common good of the society." And in Federalist 63, explaining senators’ insulation from public opinion by six-year terms and freedom (until 1913) from direct accountability to the voters, Madison wrote that such a "temperate and respectable body of citizens" may "be sometimes necessary as a defense to the people against their own temporary errors and delusions."

Today, with both House and Senate members tightly tethered to the immediate desires of their constituents and interest groups, where are we to look for the kind of aristocratic elite favored by Burke? A lot of us have come to look to the unelected, unrepresentative, undemocratic Supreme Court.

Justices and would-be justices don’t have to raise campaign cash, pander to public opinion, or even-until they have been confirmed for life-tell us what they think. John Roberts is on his way to becoming chief justice based on extraordinary intelligence and legal skills, likability, a reputation for open-mindedness and decency, and his apparently temperate (if conservative) judicial philosophy. These are admirable qualities. But is this any way to choose a superlegislature?

This power-without-accountability problem could be mitigated by adopting the proposal of an ideologically diverse group of law professors to limit new justices to 18-year, nonrenewable terms, as discussed in my June 25 column. But the best remedy may be for the justices to start acting less like a superlegislature, and to resist the temptation to change the law except when absolutely necessary to resolve cases fairly, honestly, and consistently.

In this regard, Roberts at least talks a good game. His testimony was peppered with paeans to judicial modesty, humility, restraint, and the absence of any ideological agenda. He said he looks at cases "from the bottom up rather than the top down." He told the senators: "Judges are acutely aware of the fact that millions of people have voted for you, and not one has voted for any of us." He enthused about how one of his mentors-Henry Friendly, arguably the greatest federal appellate judge of the 20th century-epitomized "open-mindedness at every stage" and took pride in the fact that editorialists "couldn’t decide whether he was a liberal or a conservative."

Talk is cheap. Is all this judicial modesty for real? I think so, based on the virtually unanimous assessments of people who know Roberts well. And in the words of Cass Sunstein, a moderate-liberal University of Chicago law professor, in a recent Wall Street Journal op-ed, the nominee’s judicial opinions so far "are meticulous and circumspect. He avoids sweeping pronouncements and bold strokes, and instead pays close attention to the legal material at hand. He is undoubtedly conservative. But ideology has played only a modest role in his judicial work."

Modesty in the use of judicial power does not necessarily point to predictable results on, say, whether to overrule Roe v. Wade or other precedents with little basis in the Constitution. One aspect of judicial modesty-deference to the democratic process-argues for overturning Roe, which wiped out the democratically enacted abortion laws of all 50 states. Another aspect-adherence to settled precedent-argues for keeping Roe.

How to resolve these conflicting imperatives? For me, the tiebreaker might be that most of the public does not want Roe overturned. I’m not sure that Roberts would agree. But he doesn’t seem to be a man on an ideological mission to unsettle the law on abortion or anything else.

A "minimalist," Sunstein calls him. And if the chief-justice-to-be can move the Court toward minimalism, someday judicial confirmations won’t be such scary rolls of the dice