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Introduction |
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In reading over
the summaries now available in
NYT and
elsewhere about Judge Roberts career, I was impressed by his easy
hostility to everything "liberal." He argued against school busing,
against affirmative action, against women's rights, etc.The key idea
underlying all those positions is "strict constructionism;" in Judge
Roberts words, "... to read the Constitution as it should be read ..."
Of course, it can be immediately asked, "How should the Constitution be read?" That question reveals the interpretive nature of Judge Roberts' remark, because it is manfest that different people read the document differently. "Strict constructionism" doesn't solve the problem...
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This phrase attempts to hide the fact that it is an
interpretation, the conservative
interpretation, of the Constitution. The phrase purports that one is using
words exactly, when their view is adopted, and that anything else must be
sloppy workmanship. The phrase suggests that there is some absolute
standard by which these things can be measured, and even that there is
agreement about such a standard.
The difficulty with that conservative view is that it is neither proven
nor a historical fact; rather, it is a political argument. Conservatives
having been making the argument since the foundation of the country. In
fact, there have been many interpretations of the Constitution in American
history. There is no agreed standard by which its words can be evaluated.
This last philosophy was adopted by the Marshall Court in
Marbury v Madison; i.e., the Court
asserted its right to determine the meaning and application of the
founding documents fromm time to time. Ever since that famous case,
"strict constructionism" has been a debating point, not the practice of
the Supreme Court.
In the last few years, conservatives have exposed their hypocrisy in their
acts. For example, while claiming to be defenders of States' Rights, they
have been quick to attempt suppressing States that don't agree with their
"values." They disapprove of marijuana, so they've used the Federal
government to harrass States that allow any use of the plant. They
disapprove of "assisted suicide, so they've harrasssed the State of Oregon
and its doctors, despite the majority support of the law in Oregon. These
and other examples show that conservative merely
use the States' Rights argument to
get their way. Whining about States' Rights was the traditional Southern
way of complaining about Yankee dominance. Now that Southerners are in
power, the doctrine turns out to be inconvenient.
In looking over Judge Roberts' decisions, I was struck by how often
ordinary people lose his vote, while he endorses the actions of corporate
and other powerful interests. The effects of "strict constructionism," a
"modest judiciary" and small government always seem to favor the elite
social, economic and political classes. The 20th century
history of the New Deal and the Warren Court.certainly suggest that Big
Government and an Activist Judiciary are among the few recourses people
have to offset powerful elites. Until they got that help, minorities,
workers and women were grossly oppressed in most aspects of their lives.
So, there is an inherent bias in the philosophy of small goverment, a bias
toward the rich and powerful, because the lower classes cannot exercise
countervailing power without the agency of the government. Historically,
the people - the lower classes - only prevail against the rich and
powerful when they are organized as a government, officially or otherwise.
The modern theory of justice owes much to Harvard's Prof
John Rawls, who propounded the doctrine "justice as fairness" in his
A Theory of Justice
and other works. Judge Roberts is surely familiar with those works. Rawls
makes an important distinction which must be considered in the Roberts
hearings. There is Justice as Fairness, meaning
fair trial, fair proceedings. Then
there is Justice as Fairness, meaning
decisions fair to those concerned. The difference is the fairness
of process and the fairness of result, or equity, of means and ends.
Much of our legal system is based on ideas of
due process. Assurance of due
process is a major daily business of the Courts. "Due process" is an
implementation of the fairness of process idea. Due process requires
hearings to follow a given schema, in which certain facts (evidence) are
sanctionned and others are not. The advocates of differing views are given
equal opportunities to present their cases according to pre-determined
rules. Due process aims to guarantee "a search for truth." When the search
is not flawed, due process is said to have resulted in a "fair trial,"
regardless of the result. One version of Justice as Fairness is that
Justice is satisfied, once litigants have had a fair trial. On this view,
we cannot draw any a prioi conclusions about what is or isn't right; we
can only do things according to rules we agree are fair.
However, most of us feel unsatisifed with purely procedural fairness. When
the Judge slams down the gavel, adjourning the Court, we may or may not
feel 'you've had your day in Court' was enough. Most of the time,
especially in small and inconsequential matters, most people will go along
with a fair hearing as sufficient Justice. This is probably because not a
lot was at stake, so the losers are not seriously punished and probably
won't hold a grudge. The winners probably think they won't get a greater
reward by pursuing the matter further. But when the stakes are high, as in
criminal and high value civil cases, people think there must be something
more: Justice is not merely due process, but coming to the correct
conclusion as well. In such cases, people have a stake in the outcome, so
they want Justice to determine and distribute equity as well. That is,
people have an independent, non-procedural basis for determining what is
right and wrong by which they judge whether Justice was done. Most people
think there needs to be a harmony between due process and equity; the one
should produce the other.
This is the key issue dividing conservatives and liberals today:
is due process alone sufficient justice?
To the extent that "strict constructionism" is a legitimate philosophy,
conservatives are saying you got justice, if the Courts followed the
letter of the law. The conservative term, "judicial activism,"
(translated) means adjusting the equities in the situation to obtain a
"fair" result (according to everyone else). Conservatives oppose doing
that because it changes the social order. Of course, that brings us back
to the deceptive nature of conservative arguments about "strict
construction," "judicial.activism," etc. A premise of these arguments is a
political philosophy which defends the
status quo ante. (Simply put, today's conservatives are
reactionaries.)
Should Courts decide equity? I say yes. Process alone is not enough, but
it is required. We have a right to
due process; that is fundamental in American law and political philosophy.
But those rights alone do not produce happiness or the good. We have to
apply the extended principle of Equality, and the human fact of
Fraternity, in order to make equitable judgements. Equity requires the
application of an "outside" principle to the process of justice. To be
fair, that principle should be explicit, not implicit, in the judicial
process. While this puts judges in the position of Solomon, making
Solomonic decisions is not that unusual. We all have to adjust equities
just to live our lives. We do it when bringing up children, when
supervising employees and even when deciding who gets served what portion
at the dinner table. Equity is always arguable and troublesome. It might
be this way one day, and another the next; so it might be said to be
unprincipled; but that is not so. Determining equity amounts to applying
the famous phrase, "similar circumstances," attached to the Kantian
Categorical Imperative.
There will always be arguments about the application of such a slippery
guideline, about determining equity, but Justice as Fairness is not merely
procedural; it is also substantial. Anything less is not just.
Here's another analysis of
Robert's early career (NYT, July 28, 2005)
| An Advocate for the
Right By DAVID E ROSENBAUM WASHINGTON, July 27 - The early 1980's were a heady time for conservatives in Washington. Ronald Reagan was president, and after years on the outside, some of the strongest voices in the conservative movement - men like Edwin Meese III, James G. Watt, William Bradford Reynolds and Theodore B. Olson - were in high positions in the government and were determined to reverse what they believed to be years of liberal policies in areas like civil rights, environmental protection, criminal law and immigration. John G. Roberts, a young lawyer in the Justice Department in 1981 and 1982 and on the White House counsel's staff from 1982 to 1986, held positions too junior for him to set policy in those days. But his internal memorandums, some of which have become public in recent days, reveal a philosophy every bit as conservative as that of the policy makers on the front lines of the Reagan revolution and give more definition to his image than was apparent in the first days after President Bush picked him to be an associate justice of the Supreme Court. On almost every issue he dealt with where there were basically two sides, one more conservative than the other, the documents from the National Archives and the Ronald Reagan Presidential Library show that Judge Roberts, now of the United States Court of Appeals for the District of Columbia Circuit, advocated the more conservative course. Sometimes, he took positions even more conservative than those of his prominent superiors. He favored less government enforcement of civil rights laws rather than more. He criticized court decisions that required a thick wall between church and state. He took the side of prosecutors over criminal defendants. He maintained that the role of the courts should be limited and the president's powers enhanced. Mr. Roberts was only 26 when he joined the Reagan administration and 31 when he left. But the ideology he expressed as a young man helps explain why conservative activists seem pleased with him, even though others Mr. Bush might have picked have a more detailed public record of conservative advocacy. Consider Mr. Roberts's stands on some of the hottest political issues of the 1980's as revealed in the newly public documents: Busing In 1985, when he was an assistant White House counsel, Mr. Roberts took issue with Mr. Olson, an assistant attorney general at the time, on whether Congress could enact a law that outlawed busing to achieve school desegregation. Mr. Olson, who was one of the nation's most widely known conservative lawyers on constitutional matters, was arguing that Congress's hands were tied because the Supreme Court had ruled that busing was constitutionally required in some circumstances. Mr. Roberts wrote in a memorandum to the White House counsel, Fred F. Fielding, that Mr. Olson had misinterpreted the law. He said evidence showed that by producing white flight, busing promoted segregation. "It strikes me as more than passing strange for us to tell Congress it cannot pass a law preventing courts from ordering busing when our own Justice Department invariably urges this policy on the courts," he wrote. Sex discrimination Mr. Roberts also challenged Mr. Reynolds, who was assistant attorney general for civil rights and another prominent conservative who outranked him. In 1981, he urged Attorney General William French Smith to reject Mr. Reynolds's position that the department should intervene on behalf of female prisoners who were discriminated against in a job-training program. If male and female prisoners had to be treated equally, Mr. Roberts argued, "the end result in this time of state prison budgets may be no programs for anyone." Judicial restraint Mr. Roberts consistently argued that courts should be stripped of authority over busing, school prayer and other matters. In a letter in November 1981 to Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit, in New York, for whom he had clerked and whom he considered a mentor, Mr. Roberts wrote that he and his colleagues in the administration were determined to "halt unwarranted interference" by the courts in the activities of Congress and the executive branch. A month later, he wrote to Rex Lee, who was the solicitor general, that courts were "ill-suited to policy making because they are limited to the facts presented to them." Court-stripping is still an issue in American politics. Last year, the House approved legislation that would prevent federal courts from ordering states to recognize same-sex marriages in other states. The measure never became law. Presidential war powers In 1983, Arthur J. Goldberg, the former Supreme Court justice, wrote a letter to the White House questioning President Reagan's constitutional authority to send troops to Grenada without a declaration of war. Mr. Roberts replied with a ringing endorsement of the president's power. "This has been recognized at least since the time President Jefferson sent the Marines to the shores of Tripoli," he wrote. "While there is no clear line separating what the president may do on his own and what requires a formal declaration of war, the Grenada mission seems to be clearly acceptable as an exercise of executive authority, particularly when it is recalled that neither the Korean nor Vietnamese conflicts were declared wars." Affirmative action Mr. Roberts held that affirmative action programs were bound to fail because they required "the recruiting of inadequately prepared candidates." "Under our view of the law," he wrote in 1981, "it is not enough to say that blacks and women have been historically discriminated against as groups and are therefore entitled to special preferences." Immigration Mr. Roberts took strong issue with a Supreme Court decision striking down a Texas law that had allowed school districts to deny enrollment to children who were in the country illegally. The court had overreached its authority, he wrote, and the Justice Department had made a mistake by not entering the case on the state's side. Church-state Mr. Roberts was sharply critical of the Supreme Court decision outlawing prayer in public schools, and he said the court had exceeded its authority when it allowed any citizens to challenge the transfer of public property to a parochial school. |
WalterB -
06:12:43 - Thursday, 07/28/2005
