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WASHINGTON - Supreme Court nominee John G. Roberts Jr. once
described federal courts as having to strike a delicate balance
as the only unelected branch of government in a nation that
cherishes democracy.
Courts shouldn't be so inactive that they abdicate responsibility
to interpret the Constitution, he said during his appeals
court confirmation hearing in 2003, but they must resist overreaching
judicial activism.
His own approach?
A look at Roberts' 2003 testimony and his written opinions
as a judge suggests he embraces a conservative judicial restraint
that evokes an approach that has largely been absent from
the Supreme Court for decades.
If Roberts, assuming he is confirmed to the high court, employs
a restrained judicial outlook, he will probably disappoint
both liberals and conservatives who look to the court for
consistently favorable political results.
"We don't really have anyone on the court now with restraint,"
said Nathaniel Persily, a University of Pennsylvania law professor.
"The court's more liberal wing is pushing an agenda that
reads rights into the Constitution, and the conservatives
have been doing the same, expanding notions of property rights
while cutting back on the reach of Congress.
"If he's a justice in the more restrained tradition,
the court would be well-served."
Persily cautioned that it's not easy to predict what a justice
- who is bound by Supreme Court precedent - might do once
seated on the high court, where he has a chance to push the
bounds of constitutional interpretation. And some of Roberts'
scant track record as a judge - he has written just 49 opinions
- suggests he is not averse to pushing the limits, Persily
said.
But on balance, court historian David Garrow said, "there's
every indication that Roberts is not an ideologue or an activist."
"If the President had wanted to pick someone like that,
he had choices available," Garrow said. "This guy
doesn't look like he's going to overturn any apple carts."
Roberts defies comparison to current justices, and might be
closest to jurists of the past. Felix Frankfurter, for example,
was a liberal appointee of President Franklin D. Roosevelt's
who earned a reputation as one of history's chief advocates
of a limited role for the court.
Roberts, who in private practice was one of the most prolific
and successful advocates at the Supreme Court, also may share
traits with two other great litigators who sat on the court:
Lewis Powell and Thurgood Marshall.
"I think there is a pragmatism and eclecticism that comes
from playing that role," said Mark Rahdert, a Temple
University law professor. "They weren't wedded to any
pet theory or methodology. Their job was to kind of figure
out what works, and borrow from a variety of different sources
to get the job done."
Some say that Roberts, who clerked for Justice William H.
Rehnquist before he became chief justice, might most closely
resemble a lower-court judge for whom he also clerked, Henry
Friendly. A renowned chief judge of the New York-based U.S.
Court of Appeals for the Second Circuit, Friendly was "the
ultimate pragmatist," Rahdert said. "He had a strong
view of judicial restraint."
Roberts has been a judge only two years, and his seat is on
the District of Columbia Circuit appeals court - an unusual
appellate bench whose docket rarely includes cases involving
hot-button social issues.
In most of his opinions, which turn on fine legal questions
about the scope of government power, Roberts demonstrates
a preference for rulings that avoid sweeping pronouncements
about ideology or constitutional theory and stick to the facts
at hand.
His rulings are restrained in his view of what the courts
should or should not be deciding, and in what role he thinks
judges should play in pushing the bounds of the law.
Without question, his view of a limited role for the courts
- and other branches of the federal government - is likely
to produce results that many Americans would describe as politically
conservative. He has resisted broadly interpreting civil and
individual rights, and has voted to limit the scope of federal
power to affect business regulation or environmental protection.
Roberts has written that Americans who were prisoners of war
in Iraq could not access federal courts to sue their captors.
In a case that has drawn a lot of attention from environmentalists,
he rejected what is considered the strongest constitutional
rationale for Congress' ability to protect endangered species.
But his approach could just as likely disappoint conservatives
who hoped President Bush would deliver a justice who would
pursue their social agenda. Roberts seems unlikely to embrace
the "strict constructionist" brand of constitutional
interpretation that Bush says he admires.
Roberts said in 2003 that he found that approach helpful sometimes,
but not always. He said he did not adhere to any particular
school of constitutional interpretation.
"I just don't feel comfortable with any of those particular
labels," Roberts said. "I don't necessarily think
it's the best approach to have an all-encompassing judicial
philosophy."
Roberts also has not indulged efforts to wipe away the expanded
notions of individual and civil rights that have evolved.
There is a consistency to his views that often defies categorization,
seeming to speak to a steady judicial outlook that has less
to do with results than with reasoning.
Roberts told the Senate in 2003, for example, that the idea
of a right to privacy - the foundation for the landmark 1973
abortion ruling in Roe v. Wade - goes back much farther in
American law than most people think.
That is not an answer one would probably get from court conservatives
such as Justice Antonin Scalia or Rehnquist, who have been
critical of that right. For many conservative thinkers, the
constitutional right to privacy, which doesn't appear in the
text of the Constitution, is the hallmark of liberal court
activism.
Doug Kendall, executive director of the Community Rights Counsel,
a nonprofit law firm that handles environmental cases, said:
"I see a lot of evidence in the record that Roberts is
a true conservative, someone who believes in traditional restraint
on the federal government and the courts."
Kendall said he was concerned about Roberts' opinion questioning
the basis for the Endangered Species Act. But he was encouraged
by Roberts' participation as a private lawyer in a case that
the Community Rights counsel handled, and won, at the Supreme
Court.
"I have a mixed view of his record, but there's not much
there to say he's an activist," Kendall said.
Rahdert said there were two key questions for Roberts:
"How fixed or open is his mind? And how carefully does
he draw the line between his personal beliefs and his role
as a judge? Some of the best justices have had open minds
and a clear understanding that their personal views aren't
the law."
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Contact reporter Stephen Henderson at 202-383-6003
or shenderson@krwashington.com.
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