Hard to Lay a Glove on Him

Judge John Roberts has submitted his responses to the Judiciary Committee’s questionnaire; you can access his completed forms in PDF here. The main conclusion that jumps out at you when you read Roberts’ answers is how extraordinarily well-qualified he is. For a man of 50, his breadth of experience at the very top of his profession is almost unbelievable. Roberts must surely be one of the best-qualified people ever nominated to the Supreme Court.
The Committee asked Roberts about his views on “judicial activism.” His response was a model of even-handedness. On one hand, he acknowledges that intrusion by the courts into political matters may be inappropriate:

It is difficult to comment on either “judicial activism” or “judicial restraint” in the abstract, without reference to the particular facts and applicable law of a specific case. On the one hand, courts should not intrude into the areas of policy making reserved by the Constitution to the political branches….To the extent the term “judicial activism” is used to describe unjustified intrusions by the judiciary into the realm of policy making, the criticism is well founded.

But Roberts balanced these observations with a rather ringing defense of the Court’s role as a check on the other branches of government:

At the same time, the Framers insulated the federal judiciary from popular pressure in order that the courts would be able to discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on the political branches…It is not “judicial activism” when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts…When [saying what the law is] results in checking the Legislature or Executive, the judiciary is not engaged in “activism,” it is rather carrying out its duty under the law.

The New York Times badly misreports this part of Roberts’ response. The Times writes:

In [his answers], the nominee seeks to cast himself as a proponent of judicial restraint, a quality prized by senators at a time when conservative critics of the judiciary are bemoaning activist judges.
“Judges must be constantly aware that their role, while important, is limited,” Judge Roberts wrote. “They do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.”

The Times fails to quote from or even acknowledge the second, longer part of Roberts’ answer where he defended judicial action that “check[s] the Legislature or Executive” against the “judicial activism” charge.
As has been widely reported, Roberts’ answers include an essay in which he argues for “modesty” and “humility” on the part of judges. These paragraphs are worth reading because they give us a sense of what Roberts’ style on the Court is likely to be, but it is hard to see how anyone could take issue with them. The Democrats are still trying, but they have yet to lay their hands on an effective weapon to use against Roberts.


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