The current battle over nominations to the U. S. Supreme Court is not really a battle over people, but over principles. It is not a fight for just a court, but for a country. What did we learn from last week’s Senate Judiciary Committee hearings about Chief Justice nominee John Roberts and this critical battle? Not much. The hearings could almost have been scripted in advance. And Roberts’ question-ducking was so blatant that some observers now predict he will win by a narrow, partisan margin—some Democrats earlier leaning in his favor will now be inclined to vote “nay” because of Roberts’ evasiveness. This is exactly the “politicization” of the judiciary decried by Roberts and his GOP handlers—and it is their own fault.
First, Roberts refused to answer fundamental questions regarding philosophical and constitutional issues to which We, the people deserve an answer. A few examples include:
* Are the unborn “persons?”
* What limits can Congress impose on the courts?
* Is race-conscious affirmative action constitutional?
* What is your overarching philosophy?
Second, and perhaps even more troubling, were the non-answer answers that Roberts offered. Roberts declared that he has no “overarching philosophy.” But consideration of his testimony in its totality seems to reveal a clear—and anti-constitutionalist—philosophy. A few of the most problematic ingredients of his philosophy include the following:
*Roberts declared his passionate commitment to the “rule of law.” But how does he define this foundational concept? As legal scholar Raoul Berger has noted, “The written Constitution was . . . the highest expression of the ‘rule of law.’” But John Roberts’ “rule of law” appears to be fundamentally different. The following points indicate his definition—a definition that leads us farther along the path to the rule of lawlessness, not the rule of law.
*Roberts declared that the “primary check on the courts has always been judicial self-restraint” and its position as the “weakest branch of government” described by Alexander Hamilton in The Federalist #78. But Roberts only rephrases our problem; he does not offer a solution. The courts have not exercised self-restraint and have made themselves the strongest branch of the national government. Roberts gave no solution for this disaster.
*Roberts consistently tied “judicial restraint” to a judge’s adherence to precedent /stare decisis (previous court decisions). But what happens when the Court “gets it wrong”—when the Court violates, rather than upholds, the Constitution? The Constitution is the Supreme Law of the Land with a fixed meaning which judges can—must—discern and apply in every constitutional issue they face. The Constitution is the ultimate precedent; court decisions are not. As one of England’s top-ranking jurists observed, “If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling about them.” In America, the Constitution is the ultimate expression of our “fundamental principles of truth and justice.” John Roberts did not express this correct understanding of the Constitution and the courts—a most basic and dangerous flaw in any judge’s approach to the Constitution.
Roberts zealously expressed his determination to protect the “independent judiciary.” But “independent” of whom or what? What about protecting the independence and supremacy of the Constitution over runaway, anti-constitutionalist judges? Roberts’ testimony in general appeared to separate judicial decisions from—keep them “independent of”—the Constitution itself. The unbridled judicial discretion which results is “the first engine of tyranny.”
*Roberts refused to label himself an “orginalist” and “constructionist”—terms associated with being a constitutionalist. He preferred to be known as a “modest judge?” As applied to constitutional interpretation, what on earth does this mean?
Thomas Jefferson wrote that “Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction.” Would Chief Justice John Roberts heed Jefferson’s wise words? Roberts’ record so far suggests not.
Action Item: Fight for Constitutionalist Judges by Empowering Yourself with Knowledge!
- Visit our web page for other articles and commentaries on current Court nominations battles
- Order now your copy of the “Constitutionalist Manifesto” (a clear and comprehensive statement of the principles for which we are fighting—principles to which judicial nominees must have a clear commitment)
- Order now your copy of the hot-off-the-press “Constitutionalist Papers” (Critiques of bad court decisions illustrating the damage that occurs when the principles of the “Manifesto” are violated by judges)
- Order extra copies for yourself and your friends