|C.J. John Roberts|
As the Supreme Court's decisions on "Obamacare" near, James Fallows looks back to the time of Chief Justice John Roberts confirmation. The nominee famously (I thought disingenuously) spoke of "humility" and just "calling balls and strikes" - applying rules made by others. Barack Obama - then a little known freshman Senator - joined twenty one other Democrats who voted to deny confirmation. His words were prescient:
"The problem I face...is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court... what matters on the Supreme Court is those 5% of cases that are truly difficult.Obama has already been proven right. I fear the Court's decision, and hoe that - against the odds - John Roberts has learned something of humility.
In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.
In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.... In those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
I talked to Judge Roberts about this. Judge Roberts...did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.
I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.
I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.