john roberts

Pretty good stuff from Jeffrey Toobin (author of The Nine) on how Roberts steers the now quite conservative Supreme Court. It's a good read but hardly surprising - would anyone have expected Roberts, a graduate of the Reagan administration who faithfully represented George W. Bush in Florida in 2000 to be anything but strictly conservative? I think its an interesting read if only to understand the motivating factors behind Roberts' decisions - a lot of it comes down to his hesitance to have the Court involved in constructing any sort of policy. He certainly feels that the role of the judiciary is strictly to uphold laws put into effect by legislators, a position that entrenches him firmly against any idea of activism. His stance against affirmative action, asserting equivalance between forced segregation and forced integration is quite telling (I happen to agree with Breyer). In this way, it makes Obama's statement following Souter's retirement more telling - that his view of the role of the judiciary is not in line with the Robers/Rehnquist view:

Obama is the first President in history to have voted against the confirmation of the Chief Justice who later administered his oath of office. In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart. “It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” the Senator said. The first bill that Obama signed as President was known as the Lilly Ledbetter Fair Pay Act; it specifically overturned the interpretation of employment law that Roberts had endorsed in the 2007 case.

Certainly, debates on the the new nominee (whoever it is) will be quite interesting, and I wonder if we'll hear any peeps from current sitting justices. Probably not.