Wednesday, September 14, 2005

Government: Supreme Court

Trying to figure out what Judge Roberts believes from his testimony is like trying to figure out who is going to win the next Superbowl by reading chicken entrails and the magic eight ball.

But there are tons of interesting political and legal discussions going on right now in the blogosphere about Judge Roberts and the confirmation hearings. Here's a particularly interesting point cited by Armando and People for the American Way, followed by my thoughts...

From People for the American Way (liberal PAC):
After yesterday's bobbing and weaving from Chief Justice nominee John Roberts, you might think Roberts told senators that the Constitution protects rights Americans have come to expect - reproductive choice for women, a right to privacy in our own bedrooms, and the right to make intensely personal medical decisions, such as refusing unwanted medical treatment, without government interference.

You'd be wrong. While Roberts said he believed in a right to privacy under the Constitution, he immediately added that every member of the Supreme Court does, "to some extent or another."

By saying that he believes in a constitutional right to privacy the way every member of the Court does, Roberts is essentially saying that he would provide virtually no real protection for the right to privacy. Every member of the Court, of course, includes Justices Antonin Scalia and Clarence Thomas. According to their view, any right to privacy does not encompass a woman's right to reproductive choice, and both have argued that Roe v. Wade should be overruled. According to their view, any right to privacy apparently does not include the right of consenting adults to be free from criminal prosecution for what they do in the privacy of their own bedrooms, as reflected in their dissents in Lawrence v. Texas. And according to Scalia's view, the right of privacy does not give even a fully competent adult the right to refuse unwanted medical treatment, as reflected in Scalia's opinion in Cruzan v. Missouri Dept. of Health.

Look, Bush isn't going to nominate Earl Warren II. I see three possible roles Roberts may play:

1) Partisan Republican: Like Antony Scalia, Roberts could support whatever his party supports, and make his decisions based on political ideology and loyalty to the people who put him in power. This would essentially be the same as Bush or Gingrich being Chief Justice of the Supreme Court. (Lawful Evil)

After his confirmation battle, a scarred Judge Roberts
will have to take extreme measures to extend his life.

2) Strict Constructionist: Also known as "Originalist" and characterized by statements about following the exact written text of the Constitution (as opposed to the spirit and/or intent of the Constitution). Clarence Thomas is the best example of this. If it wasn't enumerated by the Framers 214 years ago, it shouldn't happen now. This leads to some interesting decisions, such as support for medical marijuana and perhaps gay marriage, as long as they are initiated by and thus fall under the auspices of the states. But you will never see any expanded rights or regulation of business coming from such a judge. (Lawful Neutral)

Roberts earlier work experience includes
mercilessly hunting Jean Valjean and singing show tunes.

3) Steward of the Court: Like Warren Burger, Roberts may look into the mirror a few weeks after being confirmed and decide that its now his mission in life to protect the Constitution and the rights of Americans. If he judiciously rules on the facts of the case in the context of evolving law and our rights under the Constitution, he could be one of the greatest Supreme Court Justices in history by virtue of the fact that he's going to be Chief Justice of the Supreme Court for 30-40 years. In that time, if he clings to the ossified beliefs of the circa 1970 Republicans who currently run our country, we're screwed. But the changes our society will undergo during that period will be immense. With a life tenure, he could develop true indepence. (Lawful Good)

Like Saul, Judge Roberts should consider taking
a vactation to Damascus after his confirmation hearing.

Or he could become drunk and corrupt with power, as Lord Acton observed. Now, its my opinion that Roberts will turn out to be somewhere in between Numbers 1 and 2. But only time will tell.


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