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Roberts' approach: Judicial restraint

Knight Ridder
July 24, 2005
Stephen Henderson

WASHINGTON - Supreme Court nominee John G. Roberts Jr. once described federal courts as having to strike a delicate balance as the only unelected branch of government in a nation that cherishes democracy.

Courts shouldn't be so inactive that they abdicate responsibility to interpret the Constitution, he said during his appeals court confirmation hearing in 2003, but they must resist overreaching judicial activism.

His own approach?

A look at Roberts' 2003 testimony and his written opinions as a judge suggests he embraces a conservative judicial restraint that evokes an approach that has largely been absent from the Supreme Court for decades.

If Roberts, assuming he is confirmed to the high court, employs a restrained judicial outlook, he will probably disappoint both liberals and conservatives who look to the court for consistently favorable political results.

"We don't really have anyone on the court now with restraint," said Nathaniel Persily, a University of Pennsylvania law professor. "The court's more liberal wing is pushing an agenda that reads rights into the Constitution, and the conservatives have been doing the same, expanding notions of property rights while cutting back on the reach of Congress.

"If he's a justice in the more restrained tradition, the court would be well-served."

Persily cautioned that it's not easy to predict what a justice - who is bound by Supreme Court precedent - might do once seated on the high court, where he has a chance to push the bounds of constitutional interpretation. And some of Roberts' scant track record as a judge - he has written just 49 opinions - suggests he is not averse to pushing the limits, Persily said.

But on balance, court historian David Garrow said, "there's every indication that Roberts is not an ideologue or an activist."

"If the President had wanted to pick someone like that, he had choices available," Garrow said. "This guy doesn't look like he's going to overturn any apple carts."

Roberts defies comparison to current justices, and might be closest to jurists of the past. Felix Frankfurter, for example, was a liberal appointee of President Franklin D. Roosevelt's who earned a reputation as one of history's chief advocates of a limited role for the court.

Roberts, who in private practice was one of the most prolific and successful advocates at the Supreme Court, also may share traits with two other great litigators who sat on the court: Lewis Powell and Thurgood Marshall.

"I think there is a pragmatism and eclecticism that comes from playing that role," said Mark Rahdert, a Temple University law professor. "They weren't wedded to any pet theory or methodology. Their job was to kind of figure out what works, and borrow from a variety of different sources to get the job done."

Some say that Roberts, who clerked for Justice William H. Rehnquist before he became chief justice, might most closely resemble a lower-court judge for whom he also clerked, Henry Friendly. A renowned chief judge of the New York-based U.S. Court of Appeals for the Second Circuit, Friendly was "the ultimate pragmatist," Rahdert said. "He had a strong view of judicial restraint."

Roberts has been a judge only two years, and his seat is on the District of Columbia Circuit appeals court - an unusual appellate bench whose docket rarely includes cases involving hot-button social issues.

In most of his opinions, which turn on fine legal questions about the scope of government power, Roberts demonstrates a preference for rulings that avoid sweeping pronouncements about ideology or constitutional theory and stick to the facts at hand.

His rulings are restrained in his view of what the courts should or should not be deciding, and in what role he thinks judges should play in pushing the bounds of the law.

Without question, his view of a limited role for the courts - and other branches of the federal government - is likely to produce results that many Americans would describe as politically conservative. He has resisted broadly interpreting civil and individual rights, and has voted to limit the scope of federal power to affect business regulation or environmental protection.

Roberts has written that Americans who were prisoners of war in Iraq could not access federal courts to sue their captors. In a case that has drawn a lot of attention from environmentalists, he rejected what is considered the strongest constitutional rationale for Congress' ability to protect endangered species.

But his approach could just as likely disappoint conservatives who hoped President Bush would deliver a justice who would pursue their social agenda. Roberts seems unlikely to embrace the "strict constructionist" brand of constitutional interpretation that Bush says he admires.

Roberts said in 2003 that he found that approach helpful sometimes, but not always. He said he did not adhere to any particular school of constitutional interpretation.

"I just don't feel comfortable with any of those particular labels," Roberts said. "I don't necessarily think it's the best approach to have an all-encompassing judicial philosophy."

Roberts also has not indulged efforts to wipe away the expanded notions of individual and civil rights that have evolved.

There is a consistency to his views that often defies categorization, seeming to speak to a steady judicial outlook that has less to do with results than with reasoning.

Roberts told the Senate in 2003, for example, that the idea of a right to privacy - the foundation for the landmark 1973 abortion ruling in Roe v. Wade - goes back much farther in American law than most people think.

That is not an answer one would probably get from court conservatives such as Justice Antonin Scalia or Rehnquist, who have been critical of that right. For many conservative thinkers, the constitutional right to privacy, which doesn't appear in the text of the Constitution, is the hallmark of liberal court activism.

Doug Kendall, executive director of the Community Rights Counsel, a nonprofit law firm that handles environmental cases, said: "I see a lot of evidence in the record that Roberts is a true conservative, someone who believes in traditional restraint on the federal government and the courts."

Kendall said he was concerned about Roberts' opinion questioning the basis for the Endangered Species Act. But he was encouraged by Roberts' participation as a private lawyer in a case that the Community Rights counsel handled, and won, at the Supreme Court.

"I have a mixed view of his record, but there's not much there to say he's an activist," Kendall said.

Rahdert said there were two key questions for Roberts:

"How fixed or open is his mind? And how carefully does he draw the line between his personal beliefs and his role as a judge? Some of the best justices have had open minds and a clear understanding that their personal views aren't the law."



Contact reporter Stephen Henderson at 202-383-6003 or

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