John Roberts, the New Teflon Justice
By Isaiah Z. Sterrett (08/03/05)
ALL I CAN SAY is thank Goodness John Bolton was never a member of the Federalist Society. That would have spelled the end for sure. W. was brave for nominating Bolton the way he is; any stint he might have enjoyed on a “steering committee” could have killed his chances outright.
Before John Roberts became The Next Supreme Court Justice, the Federalist Society was only important to a handful of right-wing law nerds. (I happen to love right-wing law nerds, but that doesn’t make them any less right-wing, and certainly no less nerdy.) People in the Federalist Society mainly like to talk about the future of the Takings Clause. They’re spellbound by the minutia of Supreme Court cases that nobody else has heard of—including most of the Supreme Court. The Federalist Society is for brilliant people; it is not for the kind of bitter partisanship liberals claim.
True, the Society is fairly conservative. But so is John Roberts and the man by whom he was appointed. Why can’t liberals grasp the idea that Republicans are often members of Republican organizations? Liberals join the ACLU with dimwitted abandon, only to wonder later why their conservative friends won’t join them.
Still, not everything is coming up roses. We’ve encountered some trouble with Judge Roberts. It’s not big trouble, at least not yet, but he’s worrying me.
Writing his first detailed analysis of the role of precedent since being nominated, Roberts says: ''A judge needs the humility to appreciate that he is not necessarily the first person to confront a particular issue. Precedent plays an important role in promoting the stability of the legal system, and a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath."
That’s only partly true. The value in precedent is manifest, but certainly Roberts doesn’t believe that every judge who has contributed to precedent believes in “the judicial oath.” Some judges have never heard of the judicial oath. Roe v. Wade is not a product of the judicial oath.
And it’s also not true that precedent must always be followed. Blind adherence to any set of opinions is wrong. It would not be “judicial activism,” which Roberts openly opposes, to overturn Roe; on the contrary, it is judicial activism to pretend that it has some basis in logical jurisprudence. Reason must always be exercised—even after one finds himself on the High Court.
It’s actually stunning that Democrats haven’t picked up on that point. Indeed, when it comes to John Roberts, Democrats haven’t picked up on any point. Feminists have the abortion argument, but that’s literally all liberals have come up with. Even the New York Times has been remarkably respectful, even cheerful, about Roberts. It’s eerie. You’d think Clinton nominated this guy. He hasn’t even taken his place on the Court yet, and already he’s the Teflon Justice.
Incidentally, this seems to be true of Justice Clarence Thomas, too. He was pilloried with a kind of vile racism and mendacity that is rare in American politics, but he has been relatively low on liberals’ radar screens ever since. There are notable exceptions, such as the occasional racist cartoon or below-the-belt comment by someone probably named Chuck Schumer, but he’s rarely subjected to the kind of venom to which people like Scalia have become accustomed. Judge Roberts is very similar.
An interesting development in the Roberts saga is that, like some of Washington’s finest, he’s rich. In an 84-page dossier he wrote about himself, the Judge reported holding $1.7 million in various mutual funds and $1.6 million in securities, including almost $300,000 in stock in XM Satellite Radio, $264,256 in stock in the computer giant Dell, and $205,440 in Microsoft stock. Be on the lookout for liberals to demand things like “answers” when it comes to how Roberts has earned and managed his money. This will be followed by angry scowls from poor people like Ted Kennedy, who will argue that Roberts and his bank account don’t “represent Main Street, USA.”
© Copyright 2005 by Isaiah Z. Sterrett
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