Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Friday, July 22, 2005

A Slowly Unfolding Picture of Judge Roberts

Orin Kerr, today, in two interesting posts provides more useful information about John Roberts.

First, Kerr provides a handy thumbnail analysis of a Fourth Amendment dissent Roberts penned in United States v. Jackson that just filed out of the D.C. Circuit in the past day or two (which, as Kerr observes, means it was drafted in large part before his nomination). Although I'm mostly talking about Kerr, I do love this passage Kerr quotes from Roberts' opinion:

Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver’s friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action.

Kerr's analysis is spot on with regard to the Fourth Amendment and Roberts' dissent, and provides a useful lens through which to view the decision. It's important to view decisions in context, especially those in areas like the Fourth Amendment, which require a "totality of the circumstances," heavily fact-based determination. One could easily hold this decision up, like the "french fry case," as an anti-liberal decision simply in virtue of the result for which Roberts argues. But putatively left-leaning judges issue decisions adverse to defendants far more often than they do favorable ones. Those cases are just the easy cases, and tend not to get much play.

Speaking of the "french fry" case, Armand at Bloodless Coup directed me to an interesting discussion of Roberts opinion in that case, with which (analysis) I also am inclined to agree. Heidi puts it very well:

I mean, hard cases may make bad law, but even though these were bad facts, the law isn't particularly hard. What was Roberts supposed to do? There's very clear Supreme Court precedent on all of this. He was bound to follow it. The regulations that lead to Ansche Hedgepeth's arrest were stupid, but they weren't unconstitutional. This wasn't really a hard case; most every first year Con Law student would have come to Roberts' conclusion.

Especially insightful, however, is her observations about the degree to which judges sometimes manipulate facts. It sounds bad, but hold on: the law values certainty, and when a judge reaches a point where he's simply not going to make it past 55% or so in favor of one outcome over another (would that it were not so, but the law is like that, or rather the facts are like that, demonstrating a frightful aplomb for seeking out low ground in which to puddle and saturate), often the legitimate temptation is to write as though from 100% certainty. Arguments supporting that approach can be made; a bunch of vacillating or -- dare I say it -- waffling opinions simply make a mess of the law. Ultimately, in most regards, the law presents those charged with its interpretation with two interpretive options, and perhaps a small number of intermediate alternatives. Mostly, however, it's yes or no, good or bad, and to equivocate is simply to make life harder on those people whose task it is to live by, interpret, and apply the law in the future.

To this end, Heidi observes that Roberts took the hard facts by the horns rather than messing around:

Roberts didn't shrink from the facts in this case. He acknowledged that they were horrible and he wrote about her plight in a sympathetic manner. It takes a particular kind of backbone to acknowledge that the facts are hard and the law, at least in this case, unlikable. And that is, I think, what integrity looks like.

That's hardly all there is to it, but I'd be hard pressed to disagree with Heidi's basic proposition.

In other news, Orin Kerr tracked down a transcript of an appearance Judge Roberts made on the Lehrer News Hour in 1997. He appeared as part of a distinguished panel, including Douglas Kmiec and Laurence Tribe, called upon to evaluate the import of the just-finished Supreme Court term, during which sagacious Court watchers will recall, the Court rejected a fundamental right to physician-assisted suicide, invalidated parts of the Brady Gun Control legislation and the Religious Freedom Restoration Act, and reached a sort of peak in the Rehnquist Court's run of portentous federalism decisions. It's worth noting that Roberts appeared not as a party shill, but as a D.C. attorney in private practice following his stint as Deputy Solicitor General to Bush 41.

Kerr latches on to other comments, but this is my favorite, because it does a good job of dousing the flames of alarmism that invariable scorch the edges of public discourse whenever the Supreme Court decides a case of consequence:

MARGARET WARNER: You’ve raised a couple of different issues. John Roberts, respond to the first one he raised, which was that in the Brady decision essentially could have very long range implications that could call into question the power of regulatory agencies that the federal government deputizes to do things. Do you think it could do that?

JOHN ROBERTS: Well, it could and it could not. I mean, that’s the way that a court functions. It decides the particular cases before it, and the next case will decide how broad that decision was meant to be and how narrow. The fact that the decision refers to questions that may implicate the constitutionality of independent agencies doesn’t mean that those agencies are unconstitutional. It means that those are issues that have to be addressed in the future.

In other words, one limitation on delegation of Congressional authority, or some other judicial constraint on regulatory prerogatives, does not constitute, in itself, a counterrevolution with the eradication of the post-New Deal regulatory state as its end. Or, in other words, Okay everyone, just take a deep breath. One case doesn't make a revolution. Except when it does. But it's been a while, and to be candid, most of those cases in the last fifty or sixty years, including those, like Lawrence v. Texas, issued by the Rehnquist Court, have favored the left. Move along people, nothing to see here.

Jury's still out, but everything I can find that I can sink my teeth into looks about as okay as I would have hoped under the circumstances. He could be a wolf in sheep's clothing, to be sure. But he also could easily be Kennedy. And that's the beauty, and the most horrific aspect, of the process: it's almost always a shot in the dark.


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