The Magazine

Chief Justice Roberts

From the September 26, 2005 issue: The distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts's approach to judging

Sep 26, 2005, Vol. 11, No. 02 • By TERRY EASTLAND, FOR THE EDITORS
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

This helps explain why Roberts refused last week to state his personal views, notwithstanding that previous nominees for the High Court, having stipulated that they weren't talking about legal matters but their own views, have done precisely that. To preserve the integrity of the judicial process--to ensure to all, as he put it in his opening (and unscripted) statement, that "I have no [political] platform"--Roberts wanted to give no clue as to his own beliefs. "Just talk to me as a father," Joe Biden asked him, wanting to know how Roberts might think about end-of-life decisions and whether government should be involved in them. "Just tell me, just philosophically, what do you think?" Roberts answered, "I'm not going to consider issues like that in the context as a father or a husband or anything else." Only as a judge would he do so. Likewise with Dianne Feinstein, expressing her hope "to see your feelings as a man" (what else might he be?) on the same topic, Roberts declined.

Roberts took care on numerous occasions to emphasize the importance of the distinction between law and politics as it relates to judging. For example, in response to Lindsey Graham's question about what the judge regarded as the biggest threats to the rule of law today, Roberts identified only one threat--the "tendency on behalf of some judges to take . . . [their] authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law"--the province of elected officials. He observed: "Judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before and I'll just repeat myself: The Framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, 'Let's take all the difficult issues before us and let's have the judges decide them.' That would have been the farthest thing from their mind."

The failure of the Judiciary Democrats to applaud comments like these, their evident desire to have justices and judges who go beyond any loyalty to the rule of law to advance "progressive" visions, demonstrates how far their party has traveled since the middle of the past century, when Justices Robert Jackson and Felix Frankfurter still sat on the Court. Jackson (whom Roberts admires, by the way) and Frankfurter sought to preserve the judiciary "in its established but limited place in American politics," wrote Arthur M. Schlesinger Jr. in 1947. But Hugo Black and William O. Douglas aimed to settle particular cases, Schlesinger said, "in accordance with their own social preconceptions"--such that, as a Yale law professor of that era said, "the less favored in life [would] be the more favored in law." By the end of the Warren Court, political judging had become the norm for most Democrats. So it has been ever since, and so it is today that a nominee committed to judicial restraint like Roberts received the reception he did from the law firm of Leahy, Kennedy, Feinstein, Biden, Schumer, Feingold, and Durbin.

The good news is that the Democratic party is in the minority in the Senate and that party leaders know how politically unwise it would be to filibuster such a demonstrably well-qualified nominee. John Roberts will soon be chief justice of the United States.

-Terry Eastland, for the Editors