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September 21, 2005
If He’s Sincere, He Could Be Great
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Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court." |
It is almost impossible to say much about Judge Roberts with a high degree of confidence. I think we can rule out the idea that he is an originalist (someone who interprets the Constitution according to the purported intent of the framers) in the Scalia/Thomas mold. His statements distancing himself from their flawed jurisprudence were emphatic. But this does not rule out the possibility that Roberts will prove to be a conservative ideologue of a non-originalist sort, as Erwin Chemerinsky suggests.
To be sure, Roberts claimed to be a pragmatist and he paid obeisance to stare decisis. But nominees — even Supreme Court nominees — tend to say whatever is necessary to get confirmed. Just look at how quickly Clarence Thomas turned his back on the jurisprudential assurances made at his hearing, or the truth-stretching responses that William Rehnquist gave when he was nominated to be chief justice. That said, if one gives Roberts the benefit of the doubt, he could turn out to be a much better justice than Rehnquist, the one to whom he is most often compared. While their voting patterns may prove similar, especially in the short run, Roberts has marketed himself as someone much more deeply committed to legal reasoning, open-mindedness, and judicial diplomacy than Rehnquist was, especially during his tenure as chief justice. These are valued qualities in conservatives and liberal alike — and we just have to hope Roberts was sincere when espousing them.
In sum, while I fear the worst (see Erwin Chemerinsky's views), I'm keeping an open mind that this very, very intelligent man will be receptive to the views of his colleagues and to new ways of thinking about the law. If so, he could prove to be a very effective and admirable chief.
Posted at September 21, 2005 10:30 AM
Comments
If Roberts is really a legal pragmatist similar to Richard Posner legal pragmatism, then Roberts may turn out to be another Souter or Blackmund. I don't think that the current administration really wants this sort of legal pragmatist on the bench. But then, maybe I'm underestimating them.
Posted by: James Garrett at September 29, 2005 10:24 AM