Part 7 of the series, "The Structure of Lies in Conservative Jurisprudence".
While Roberts' umpire metaphor was clearly a lie, as I argued in my previous post, there was something deeper and more insidious going on, a broader claim of judicial minimalism, modesty and restraint, which actually represented the very opposite of what it promised. Instead of turning back from the increasing extremism of conservative jurisprudence under the rubric of false principles such as “strict construction” and “original intent”, Roberts advanced conservative jurisprudence into a realm of outright lawlessness. This was not entirely new territory, given the utter lawlessness of Bush v. Gore in 2000, but that decision was clearly anomalous. It even declared itself unfit for citing as future precedent—which was a crucial part of its very lawlessness.
The Roberts Court has begun the process of normalizing lawlessness—seen most blatantly in Citizens United, and most recently in Shelby County v. Holder. To understand how and why this is so, we turn to the analysis of pre-eminent legal scholar Ronald Dworkin in the New York Review of Books, ““Judge Roberts on Trial”, written after the conclusion of the confirmation hearings.
Dworkin first notes that, “Almost every recorded political statement John Roberts has made throughout his life, from adolescence to his nomination as chief justice, suggests that he has strong conservative political convictions and instincts,” but that he promised not to “use his great power on the Supreme Court in the service of his politics” and that the Senate Judiciary Committee had “failed dramatically in its responsibility” to test that promise.
A key point in Dworkin's lengthy analysis is to explain just what sort of thing the senators should have been looking for: first, a coherent set of “convictions about the proper role of a judicially enforceable constitution in a democracy,” and second, convictions about the role of judges in supporting, promoting or defending that role. Only these sorts of broad philosophical/constitutional commitments can give order and meaning to a judges interpretations, curbing his own merely political prefences on the one hand, while on the other givng concrete meaning to the empty platitudes like “the rule of law”, which Roberts repeatedly invoked.
Here is Dworkin explaining this in his own words. He first notes that
[M]ost judges insist that there is a difference between what the law requires them to decide, even when they are applying the very abstract moral language of the Constitution, and how they would vote if they were legislators free to vote in accordance with their own policy preferences.
And asks, “How is that possible?” He answers his question as follows:
A judge can draw that distinction in such cases only if he has, in addition to his partisan commitments and policy preferences, political convictions of a different and independent kind: convictions about the proper role of a judicially enforceable constitution in a democracy.
And for the role of judges, somewhat further down, he adds:
They can interpret their own proper role in a democracy in the same way: by asking what view of the powers of unelected judges to check what other branches of government have done follows from the view of democracy they have identified as best fitting and justifying our Constitution and our practices.
He offers examples of what he means by this. First, he notes:
Scalia's announced form of originalism, if in fact he held to it with any important degree of consistency, would constitute such a philosophy.
There will be more on this in a future part of this series. So let's move on to a second example, explained a bit more fully:
Justice Stephen Breyer, in his recent book setting out his own constitutional philosophy, offers a more attractive example. He argues that the liberty protected by an appropriate conception of democracy embraces not only a citizen's freedom from undue government interference but a more active freedom to participate in self-government as an equal; and he undertakes to show that an understanding of the Constitution as aiming to promote that form of liberty can guide constitutional adjudication in several matters, including free speech, federalism, and the constitutionality of affirmative action.
And Dworkin adds his own views to the mix:
I have myself defended a similar view of the Constitution: that it aims to create what I called a "partnership" rather than a majoritarian form of democracy by insisting that all citizens are entitled to an equal role and voice in their self-government, that government at all levels must treat citizens with equal concern, and that government must leave individual citizens free to make the personal decisions for themselves that they cannot yield to others without compromising their self-respect.
This, then, is the sort of thing that Dworkin says should concern us, and concern the Senators on the Judiciary Committee. If judges have a such an over-arching vision of the Constitution, it will provide them with a principled framework for interpreting the Constitution, and for determining their propeer functioning within it. Without such a vision, plattitudinous invocations of “the rule of law” or whatever, have no real meaning. They may seem to provide guidance for what a judge will do, but have no foundation in anything outside themselves. And that is precisely the problem with Roberts, as Dworkin sees it: he has no such guiding vision, and hence has nothing to restrain him from simply reading his own political preferences into the law, and then taking them back out again. He showed no signs of any such vision in his pre-confirmation hearing career, and he said nothing to suggest such a vision in the hearings themselves. Indeed, he demonstrably rejected making such commitments, and seemed to think that a virtue. For example, Dworkin cites an exchange with Orrin Hatch:
Senator Orrin Hatch put that question [of a constitutional philosophy] to Roberts early in the hearings. He asked him whether he is "an originalist, a strict constructionist, a fundamentalist, perfectionist, a majoritarian or minimalist...." Roberts replied that he resists labels and wants to be known only as a modest judge, that is, a judge who does not legislate or execute the laws but simply enforces the law correctly. Hatch was not satisfied and continued: "You are probably eclectic [in] that you would take whatever is the correct way of judging out of each one of those provisions? There may be truths in each one of those positions, and none of them absolutely creates an absolute way of judging." Roberts replied: "Well, I have said that I do not have an overarching judicial philosophy that I bring to every case."
While Roberts abjured various conventional conservative “principles” in the above exchange, and elsewhere in his testimony—thus making himself seem less threatening and more moderate—Dworking points out that he said nothing about what would or should replace them, leaving all the more room for him to indulge in completely arbitrary, lawless judging—which is precisely the sort of thing that we can see in his record, as I'll discuss in the Part 3. Dworkin takes a closer look at two examples of Roberts' mushiness: first with regard to precedent, then in how he distances himself from the rhetoric of “judicial activism”:
Roberts declined to describe and embrace any general theory of constitutional adjudication. But he did discuss what must be an important part of any such theory--the doctrine of precedent--extensively.
…he did say, several times, that he had great respect for the doctrine of precedent, that any earlier decision of the Court is entitled to "deference," that a justice should therefore not vote to overrule an earlier Supreme Court decision just because he thinks it was wrongly decided, and that several other factors bear on that issue, including whether people had changed their positions in reliance on the past decision, whether that decision had proved "unworkable," and whether its basis in law had been eroded by other Supreme Court decisions taken since it was decided.
Despite all that, Dworkin points out, Roberts left everyone guessing what this all meant—both for Roe v. Wade specifically, which was the primary focal point of concern, and for the handling of precedent in general:
Roberts succeeded in leaving it entirely unclear whether he would vote to overrule Roe when the Court is next presented with the opportunity to do so, though it is worth noting that conservative commentators think he may do so. But his careful equivocation also left it unclear whether he has any view of precedent that would prevent his own opinions about the morality of abortion from dictating that decision, because he left open what he means when he says that a past decision has proved "unworkable." [emphasis added]
Would his theory of precedent permit him to repeal long-established precedents barring prayer in public schools on the ground that these too had proved "unworkable" in resolving deeply divisive issues?
Left by itself, the question of what's “workable” or not is about as ambiguous as anything can get. Workable for who? And toward what end? When the Roberts Court struck down the Voting Rights Act two weeks ago, did they give any consideration at all to workability? Had the VRA proved workable to protect voting rights? Was there a workable way for covered jurisdictions that refrained from violations to be removed from scrutiny? Was it workable for Congress to draft a completely new coverage formula, potentially stirring up local passions impacting scores of individual congressmembers? Was it workable to simply abolish the existing coverage formula, and leaving it to the most gridlocked congress in modern history to fix it before millions of voters faced the possible loss of their voting rights? Clearly, the Roberts Court was not very concerned about “workability” when it came to the Voting Rights Act. Why should they care about it in any other situation? That is—what principled reason do they have? The answer is obvious: none.
Next up is the discussion of “judicial activism”, highlighting how Roberts disavows a conservative shibolith without replacing it with anything substantive, thus creating even more meaningless mush:
So Roberts's discussion of precedent, though extensive, offers no reassurance that he will not follow his own political preferences in deciding which precedents to sustain and which to overrule. [Emphasis added.] We must reach the same conclusion about his discussion of another jurisprudential issue: "judicial activism." Conservative politicians once gave that name to the practice of liberal justices who overruled state and national statutes?including statutes making abortion or homosexual sodomy a crime—to create what the liberals considered a more just society....
Roberts properly replied that judges have a constitutional duty to test legislation against the Constitution and that it is not any sin of activism but simply a mistake when judges strike down a statute they ought to sustain, just as it is not activism but simply a mistake when they sustain a statute they ought to invalidate. He therefore rejected--in my view correctly--another possible constitutional philosophy that might insulate a judge's decisions from his own policy preferences: that judges should respect any elected legislature's decision about the scope of its own powers except when its violation of the Constitution is undeniable. But once again he put nothing in the place of that theory except yet another anodyne appeal to the illusory constraint that judges should follow "the law."[Emphasis added.]
How convenient! For decades now, conservatives have been waging a unremitting jihad against “judicial activism”, and their response to the ruling striking down DOMA shows quite clearly that they haven't abandoned it. OTOH, there's the Voting Rights Act decision—as flagrant an example of judicial activism as one could ever imagine.
The VRA decision is hardly an isolated example. Just a few months before Roberts gave the testimony above, research by Yale Law Professor Paul Gewirtz and Yale grad Chad Golder was published in the New York Times showing that it was conservative justices who tended to be most activist—at least in terms of striking down laws passed by Congress—over the period 1994 to 2005. Other measures are possible, the authors noted, but given how the rhetoric is usually deployed, railing against “judges legislating from the bench”, it would seem that judges striking down laws passed by Congress would be just the sort of thing they were talking about... if they were talking straight, that is. Here's an excerpt where they report their results:
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
The figures above measure Supreme Court activism versus acts of Congress. Another measure of activism would involve the Supreme Court versus acts of the Executive Branch. That's exactly what legal scholar Cass Sunstein and economist Thomas Miles did a couple of years later, looking at each Justice's record for upholding or striking down federal agency regulations. Justice Breyer—appointed by Clinton—was the most restrained, the least inclined to strike down regulations, while Justice Scalia was the most activist. Here are the results showing how often each justice upheld the executive branch agencies:
Once again, it's the liberals who are least activists, the conservatives who are most activist. I'll have more to say about this in a future installment, but I introduce it here because this kind of analysis first appeared just before Roberts was confirmed to the Supreme Court. It shows how well-time and well-crafted his nomination was. “Never mind what we've been saying for four or five decades now,” Roberts said, in effect, “Let's just follow the law.”
I have an even better idea: Let's just follow the Roberts court, to see what it actually does in the name of “following the law”. After all, what better way to judge if Roberts was lying or not than by comparing his promises of fairness and restraint to the actual record of the Court under his helm. That's what we'll do in the next diary, drawing on two reports from the Alliance for Justice. As we'll see, Dworkin proved to be quite prescient in terms of what Roberts would do on the Court.