David Franklin, a law professor and former clerk to Justice Ginsburg, has located an area of the law about which we can be reasonably sure where, in general terms, Judge Roberts stands — judicial deference to presidential power. I’ve been amused that, amidst all of its flailing, the left has missed this. Or maybe Senate Democrats don’t see the issue as resonating with either the public (which would generally prefer that policy decisions be made by its elected executive rather than by judges) or the abortion lobby and other influential liberal interest groups.
Ultimately, Frankllin’s piece illustrates that on this issue Roberts is a conservative but well within the mainstream. On the question of “standing” to challenge administrative action, Roberts has written in defense of a Supreme Court ruling that an environmental group lacked standing to claim that a rule by the Secretary of Interior violated the Endangered Species Act. According to Franklin, Roberts “walked a fine line” between the approach adopted by Justice Scalia in the majority opinion and the approach of Justice Kennedy in a concurrence. Unless you’re a liberal who refuses to acknowledge several decades of election returns, it’s difficult to see the extremism in that.
On the issue of the president’s power to conduct war and foreign policy, Franklin notes that, as a judge, Roberts agreed with the Bush administration that language in a 2003 appropriations bill nullified a prior statute authorizing lawsuits against state sponsors of terrorism. The case involved a suit against Iraq by Americans who were held as POWs during the 1991 war. The administration did not want the new Iraqi government to be saddled with liability stemming from actions by Saddam Hussein’s government.
The two other judges who heard the case with Roberts disagreed with his interpretation of the 2003 legislation, but stated that the question was “exceedingly close.” And Franklin finds that Roberts’ opinion is “carefully written and reasonable.” Indeed, Franklin considers it consistent with Supreme Court decisions on presidential power rendered both before and since Roberts wrote his opinion. Again, Roberts falls within the judicial mainstream.
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