Strengthening Constitutional Self-Government

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Gonzales on Roe and Future Court Rulings

A July 27 NY Times account of an AP interview (Tuesday) of Attorney General Alberto Gonzales provides a helpful prelude to the questioning Roberts will face on Roe v. Wade. I say "helpful" because it was only a matter of time before Roberts would have to clarify what he meant when he said, at his 2003 Senate confirmation hearing before joining the D.C. Court of Appeals, that the Roe precedent was "settled law." Here is the relevant cite from Gonzales:

"If you’re asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you’re bound by the precedent," Mr. Gonzales said. "If you’re a Supreme Court justice, that’s a different question, because a Supreme Court justice is not obliged to follow precedent if you believe it’s wrong."
Now that AG Gonzales has clarified it for Roberts and the rest of the country, the Democrats on the Judiciary Committee will not be able to claim that Roberts misled them back in 2003 regarding how he would adjudicate future abortion cases, given the 1973 Roe precedent. On this and other important issues, Roberts will have a grand opportunity and obligation to articulate his judicial philosophy at his confirmation hearing. Add to this the confusion over whether or not he was a member of the Federalist Society, and you have a situation where Roberts must step up and explain if he still holds the view of the Constitution and the Supreme Court’s respective role in the federal government that is reflected in his early legal career.

At bottom, Bush, Roberts, and the GOP should remind themselves daily that they hold a 55-45 majority in the Senate, which should give Roberts all the more confidence that an unflinching presentation of his judicial philosophy is worth getting confirmed to the high court with a slimmer margin than otherwise would be garnered by a less forthright and clear expression of his judicial views. Given his reputation as a sharp intellect and adept courtroom advocate, if his principles are no less conservative than those for whom he worked in the past few decades, then Roberts’s confirmation hearing may very well present the clearest contrast of judicial views (Roberts versus the "living Constitution" cohort on the Judiciary Committee) in our lifetime.

Discussions - 3 Comments

Mr. Morel,

What makes you believe that Robert HAS a fully worked out judicial philosophy, or a fixed view of the constitution? Obviously he has opinions, or at least had when he was a young lawyer. You sound, though, like you expect of him some kind of inaugural lecture, as if he were the right-wing alternative to Rawls or Dworkin or Ely. What if Roberts is merely a smart, conscientious lawyer and judge--a product of America’s elite legal institutions--who will decide, to use an expression drawn from the title of one of Cass Sunstein’s books, "one case at a time?" Would that disappoint you? Does a legal philosopher necessarily make a better Supreme Court justice?

That the constitution is a "living" document is not a normative position--it is an undeniable fact. The constitution is shaped and reshaped every day by the actions and interactions of the players in our system of government, not to mention "public opinion." This does not imply that the text is meaningless; far from it. The text is the locus of constantly shifting meanings, understandings, conventions. It provides the stability of a site of contestation and dialogue.

Mr. Howse, I don’t know that Roberts "has a fully worked out judicial philosophy," but have read some accounts (including the one I noted above) that lead me to believe he has "a fixed view of the constitution." His comments as "a young lawyer" do not indicate to me the kind that he has disavowed, esp. given his extensive work with the Reagan and Bush administrations prior to the current president’s. Moreover, the fact that he made a point of expressing both his wit and his understanding of the Constitution (in broad strokes, to be sure) in the very act of carrying out his duties as legal counsel strike me as indicative of core convictions.

As for my expecting of Roberts "some kind of inaugural lecture," take my quick blog as an invitation to him to do as much, and for the good of the country--at least, in a piecemeal fashion, given the nature of confirmation hearings. Sure, he’ll say he will judge "one case at a time," but who would deny this, at least at face value? But one could admit as much without deciding cases like O’Connor (or as Cass Sunstein would). All I am saying is, if Roberts lives up to his press clippings so far, and I believe he will, he looks like he has what it takes to make the most of his confirmation hearing: namely, turn it into a discussion of the meaning of constitutional self-government for all the nation to behold. This needn’t be an overly detailed or academic exercise to be productive of great good for the country, esp. as it would actually smooth his transition to the high court by teaching Americans how judges ought to interpret and apply the Constitution to specific cases, which, indeed, may very well turn the Court in a different direction than O’Connor and Kennedy have done with their strategic votes in key cases.

You ask, "Does a legal philosopher necessarily make a better Supreme Court justice?" Not by a long shot. What little I know of Oliver Wendell Holmes suggests that he was both brilliant, coherent, and wrong about what it means to be a self-governing people under the U.S. Constitution.

Re: the notion that the Constitution as a "living" document is not "a normative position" but "an undeniable fact." Yes, it’s a fact in the sense that John Marshall observed famously that "we must never forget that it is a Constitution we are interpreting," or words to that effect. But I think for some it is also "a normative position" insofar as they think that our understanding of rights today is an improvement upon that of the Founders precisely because today’s elites view human nature and hence government as evolving entities. I believe with the Founders that human nature is a fixed thing, and hence government (i.e., a constitution) should be designed to secure what human beings already possess that is fixed: namely, their God-given rights. You will have to explain how "the text" can be "the locus of constantly shifting meanings, understandings, conventions," while providing "the stability of a site of contestation and dialogue." Is there anything about the "site" that is fixed and hence can be interpreted in a steady way that is not prone to fluctuating interpretations of what one’s rights are vis-a-vis government powers?

Dear Lucas Morel,

I don’t think the fact that Roberts found a political home in the Republican Party says much about his views on the constitution. There could be a lot of reasons why he might have felt more comfortable working in a Republican administration. Further, when one is a young public official, one tends in one’s memos to work within the main policies and orientations of the government that is one’s master. This doesn’t mean telling them what they want to hear--one can disagree on many things and be honestly critical--but it does mean that you wouldn’t expect that a young public official in a Republican administration would give advice from a totally different ideological orientation.

The fixity of human nature is not a guarantor against the mutability of political life, which constantly requires innovation in government. There are different possibilities within a fixed human nature that exhibit themselves in different times and places, requiring very different responses. As for the views of the founders, certainly Madison had a very dynamic understanding of the American regime; that is quite evident in the Federalist Papers.

You ask quite rightly about what is really the source of the fixity of constitution as a site of contestation in my own view. In think the source is a widepread view among Americans, relatively stable in recent history, that the path to desirable political change is not through radical constitutional amendment. This is a distinguishing feature of the American regime that sets it off from other societies, including other liberal democracies like Canada. People who want to change the text of the constitution in America are single issue lobbyists with little prospect of success.

But this fixity does not guarantee what you want guaranteed, which is stability of interpretation. You think rights are insecure unless we can know in advance that they will mean the same thing always. I on the other hand think that the balance between liberty and order must be constantly restruck address new circumstances, new claims, new problems, even new technologies, and while the text of the constitution provides guidance, it offers no more than guidance. Perhaps it is worth reflecting, if we are to speak of philosophy, on Aristotle’s presentation of natural right in the Nich. Ethics.

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