Blog’s brainiacs measure Roberts for the robe

What kind of chief justice would John G. Roberts Jr. be? For several weeks, legal scholars have been blogging about the Supreme Court vacancies on the LiveCurrent website. Below is an edited version of their views (to read the complete free-for-all and cast an up-or-down vote on Roberts, go to latimes.com/livecurrent:

*

My hope is that he’ll be a lawyers’ chief justice in the sense that he’ll be exceedingly careful and honest with legal doctrine. It’s possible he’ll surprise us -- for the worse. (Who would have suspected the constellation of views that we’ve seen from Justice Clarence Thomas?) But there’s a good chance that Roberts will combine quality and character with judgment.

-- Cass Sunstein, Karl N. Llewellyn distinguished service professor of jurisprudence at the University of Chicago Law School

*

Roberts may not have a strong judicial philosophy to guide him through the difficult shoals ahead. As a practicing lawyer, his natural tendency was to think on narrow and safe grounds without rippling the waters. That’s right for lawyers who have clients’ interests at stake, but it is less likely to prove successful for judges who decide great cases.

-- Richard Epstein, James Parker Hall distinguished service professor of law and director of the law and economics program at the University of Chicago

*

Throughout his career, Roberts has urged fewer constitutional protections for reproductive freedom, racial minorities and the separation of church and state. There is nothing in his record as a lawyer or a judge to support optimism in any of these areas. Nor did he say anything at his confirmation hearings to lessen concerns about his likely votes on these topics as chief justice.

-- Erwin Chemerinsky, Alston & Bird professor of law and a political science professor at Duke University

*

It is absolutely certain that Roberts is not an ideologue. No ideologue would have resisted the many temptations presented to him during his career to show such a tendency. Thus, this is not an appointment in the mold of Justices Antonin Scalia or Thomas. Roberts is, in virtually every respect, likely to be a 1-1 trade for the late Chief Justice William H. Rehnquist, but all indications are that he will be thoughtful and more open to a wide array of arguments than Rehnquist was.

-- Marci Hamilton, holds the Paul R. Verkuil chair in public law at Yeshiva University’s Benjamin N. Cardozo School of Law

*

None of the former chief justices set out to import personal views as law, but under the last three -- Earl Warren, Warren Burger and Rehnquist -- it happened too frequently. With Roberts in the center seat reminding his colleagues, ever so effectively and persuasively, of the importance of fidelity to the judicial role, liberal and conservative activism will have less resonance.

-- Douglas A. Kmiec, holds the Caruso family chair of constitutional law at Pepperdine University

*

Roberts is not an originalist in the Scalia/Thomas mold. He emphatically distanced himself from their flawed jurisprudence. But this does not rule out the possibility that Roberts will be a conservative ideologue of a non-originalist sort. Though their voting patterns may prove similar in the short run, Roberts has marketed himself as someone more deeply committed to legal reasoning, open-mindedness and judicial diplomacy than Rehnquist did, especially during his tenure as chief justice.

-- Edward Lazarus, author of “Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court”

*

Although Roberts will be to the left of Rehnquist on a number of issues, he will, paradoxically, move the court slightly to the right. This is because he will be a better coalition-builder than Rehnquist. In the latter’s court, Sandra Day O’Connor and Anthony Kennedy, sometimes alienated by Scalia and Thomas, increasingly swung to the moderate-left bloc. Rehnquist generally aligned himself with Scalia and Thomas. Roberts will shake up the voting blocs by reaching out to the moderate-left justices and bringing them onboard more conservative decisions.

-- Jed Shugerman, teaches legal history and politics at Harvard Law School