Judicial Restraint 101

Terry Eastland has written an article entitled Chief Justice Roberts: The distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts's approach to judging, including these words:

On the final day of the Roberts hearings, Sen. Richard J. Durbin of Illinois tried one last time: "If you've made one point many times over . . . the course of the last three days," he told the judge, "it is that as a judge you will be loyal and faithful to the process of law, to the rule of law." But "beyond loyalty to the process of law," he asked Roberts, "how do you view [the] law when it comes to expanding our personal freedom? . . . That's what I've been asking."

And so, in various ways, had Durbin's Democratic colleagues been asking about such matters--ones "beyond loyalty" to the rule of law. In response to Durbin, Roberts stuck to the point he had indeed made "many times over." Reframing the senator's question so as to reach the core issue, Roberts said, "Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

That exchange crystallized the fundamental difference between John Roberts and the eight Democrats on the Senate Judiciary Committee. The Democrats believe a good judge will move "beyond loyalty" to the rule of law, if necessary, and seek to advance certain political outcomes--in Durbin's question, the expansion of personal freedom. Roberts dissents: He believes a good judge will distinguish between law and politics and stick resolutely to the law, regardless of the result...He'll not look out for "particular interests" because his oath obligates him to support not this or that interest but the Constitution and the laws of the United States...

There is unease among some conservatives as to how Chief Justice Roberts will turn out. Yet it must be said that Roberts has made emphatically clear his view that a judge must be restrained by the law--the rules, principles, customs, practices, and understandings that define it--and must not allow the law to be infused with the judge's own political views and personal values. In other words, the distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts's approach to judging...

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...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....

I hope, but am far from certain, that Chief Justice Roberts' central belief about the importance of judicial restraint will lead to the Supreme Court ceasing its recent legislating practices. What I do believe is that a strong belief about restraint has a greater chance of yielding that outcome than the activist views of leading Democrats.