Why John Roberts Will Be a Superb Justice: Like Justice O'Connor At Her Best, He Respects Constitutional Limits

By DOUGLAS KMIEC

Monday, Jul. 25, 2005

By now, most of America has been introduced to John Roberts, and they like what they see. They should.

As a former colleague - we worked together for President Reagan - I know that John is an open-minded, even-tempered product of a hardworking Midwestern family. The father of two adopted children, John is comfortable with himself and the familiar things in life: quiet moments with his wife, Jane; easygoing conversations with backyard neighbors; and friendship. Honored to have the confidence of this President, as he had of two others before, John nevertheless grasps that what is familiar or everyday is often the most important.

Judge Roberts's knowledge of legal issues is exceeded by few even among the elite Supreme Court bar; yet, as articulate and intelligent as he is blessed
to be, his greatest asset is his authentic interest in the views of others. All who worked with him, as I did, enjoyed the benefit of his counsel and his warm affability.

In this column, I'd like to suggest some topics that should - and should not - be raised during Robert's confirmation hearings. I'll also point to some little-known material from Judge Roberts's past that demonstrates additional reasons why he will make a superb Justice - and a worthy, like-minded successor to Justice O'Connor.

The Senate Should Not Ask Roberts About Political Issues

Some Senators, reflecting the prodding of interest groups, will doubtless demand that Judge Roberts opine on one political issue or another, be it abortion or the
war on terror. These are vitally important topics to be sure, but they are for us, the people, and the elected delegates we have sent to the House and
Senate and state assemblies, to address. The role of a Judge is far more limited.

On the Supreme Court, as on the U.S. Court of Appeals for the District of Columbia, where he currently sits, Judge Roberts will be asked to resolve the specific cases that come before him -- as well as to help the Court decide which cases it will review.

Resolving cases requires interpretive skill and respect for enacted text and precedent - and Judge Roberts plainly has both. But it also requires, most of all, a commitment to maintaining those legal doctrines and landmarks which keep the powers of government separate.

This can be arcane lawyerly stuff, but Madison knew, as we do today, that dividing power prevents its abuse and ensures impartiality.

Roberts's Remarks on the Doctrine of Standing

Back in 1993, when John Roberts was not in public office and was outside searching national scrutiny, he was invited to participate in an administrative law discussion, in articles appearing in the Duke Law Journal. No one blowing the dust off this academic volume will find any hint as to Judge Roberts's thinking on partial-birth abortion, or same-sex marriage, or any of the other matters that make headlines. What that reader will find, instead, is a fair-minded lawyer's commitment to observing the doctrine of standing.

Standing, as first year law students learn, qualifies one to bring a case to court. The courthouse was never envisioned as a locus for all-purpose problem-solving. Rather, the federal courts were, and are, dedicated, under the Constitution, to the disposition of "cases or controversies," where someone who has suffered tangible injury can seek the redress the law permits. Accordingly, not all potential plaintiffs enjoy standing to bring all cases. Instead, only someone with a concrete, legally-recognized interest in a given case can sue.

Why is this limitation a wise one? Let's let then-counselor Roberts speak for himself:

"Standing is an apolitical limitation on judicial power. It restricts the right of conservative public interest groups to challenge liberal agency action or inaction, just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction. It precludes Congress from assigning a right to sue to those without injury whether the statutory interest sought to be judicially enforced is perceived as liberal or conservative. The relatively recent growth of conservative public interest groups, and the even more recent change in presidential administrations, should set the stage for rethinking the facile assumption that standing cloaks a political agenda. It does derive from and promote a conception that judicial power is properly limited in a democratic society. That leaves greater responsibility to the political branches of government-- however they are inclined. To the extent that is a political agenda, it is the one the Framers enshrined in the Constitution."

It's the Constitution Itself that Prohibits Legislating From the Bench

President Bush likes to sum this sentiment up with the commonsense expression, "judges shouldn't legislate from the bench." That formulation works, too.

Whether one prefers the lawyerly phrasing, or the more homespun, both capture the sense of a remarkable constitutional design that signifies in its first three words -- "we the people" -- that we are our own governors.

This respect for constitutional structure and democratic choice is not simple-minded majoritarianism. The founders secured individual rights,from the right to free speech to the right to private property, not just by dividing power, but by articulating express limits or prohibitions on the power so divided. It is they who decided that judges ought not to be legislators, and vice-versa.

Lawyers know these protections of individual right as federalism and the bill of rights. They are not inconsequential, as Justice O'Connor well understood. That understanding was reflected in two of her strong dissents last term.

In Gonzales v. Raich, Justice O'Connor would have upheld the right of a woman with a brain tumor to be treated by nonmedicinal marijuana - realizing that, to prohibit this, in fact and law was well outside Congress' commerce power. And in Kelo v. New London, Justice O'Connor argued in vain, but correctly, that the express "public use" limitation on government condemnation of property could not mean whatever the legislature wants it to mean - especially not when, as in Kelo, it meant taking modest family homes to make way for other more taxable and fancier private uses.

Justice O'Connor did not have the votes to vindicate federalism and the bill of rights in these two cases. But at least she will be honored by a worthy successor who shares her views that constitutional limitations are just that. Reflecting upon these two unfortunate decisions, one can only wish that O'Connor and Roberts could somehow have served together.

A few members of the Senate Judiciary Committee are propounding long lists of questions -- most of which confuse who is judge, and who is legislator, under our Constitution. Fortunately, John Roberts shares none of that confusion, and in the hearings, and upon his confirmation, I am confident he will know when it is his place to speak, and when not. And because that is so, "we the people," whether liberal or conservative, will be the better for it.


Douglas W. Kmiec is Chair and Professor of Constitutional Law at Pepperdine University. He served as head of the Office of Legal Counsel (U.S. Assistant Attorney General) for Presidents Ronald Reagan and George H.W. Bush. Former Dean of the law school at The Catholic University of America, Professor Kmiec was a member of the law faculty at the University of Notre Dame for nearly two decades.

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