Try to find a discussion of “originalism” in the massive, admiring profile of John Roberts Jr., headlined “Court Nominee’s Life Is Rooted in Faith and Respect for Law,” which took a swarm of New York Times reporters to put together (11 in all). You won’t find the issue mentioned anywhere, not even the word. The profile circles and circles, quoting the usual Ivy League sources about his three “P”s — politics, personality and pragmatism — but never quite lands.
We do learn that Roberts, left, “played Peppermint Patty” in his boarding school’s production of “You’re A Good Man, Charlie Brown” and, during a 1980 presidential election party many years later, he put a toy elephant on top of the TV while his roommate put a toy donkey on it.
Now have a look at the Page One story in the Wall Street Journal, “In Re Judge Roberts: Question Of ‘Originalism’ Looms Large,” which appeared the same day and took one reporter (Jess Bravin) to write.
Tell me which is more informative about the stakes in Roberts’s nomination — legally, historically, and in real-world impact — and what his appointment to the Supreme Court would mean. I’d say Bravin’s piece wins hands down.
“In the noisy clash between activists on the left and right, the debate over the Supreme Court centers around bumper-sticker issues like abortion and the environment,” he writes.
But there is a deeper and more complex argument that has been raging for years among legal scholars that the Roberts nomination now brings to center stage: whether constitutional provisions should be interpreted in light of “the evolving standards of decency that mark the progress of a maturing society,” as the late Chief Justice Earl Warren wrote in a 1958 opinion on punishing military deserters.
Under the living-Constitution banner, the Supreme Court has in recent decades concluded that Americans have “privacy rights,” even though the document doesn’t explicitly say so. The court derived from those rights the Roe decision on abortion, as well as other rulings ending government restrictions on contraception and, more recently, homosexual sodomy. The Warren Court and its followers used evolving interpretations to limit libel suits by public figures and curb execution of juveniles and the mentally retarded.
Those decisions triggered a backlash among conservatives. Four decades ago, Richard Nixon gave voice to their frustration, pledging to remake the high court with “strict constructionists.” His Republican successors echoed that vow, sometimes succeeding in placing justices who have loyally followed that rule — such as Justices Scalia and Thomas — but sometimes failing, as with Mr. Reagan’s appointment of Justice O’Connor or the first President Bush’s choice of David Souter. Some conservatives have had great hope that the younger Mr. Bush would amplify the voice of originalism on the Supreme Court.
Diehard conservatives will be cheered to read that for Ed Meese, President Reagan’s attorney general, who “helped popularize originalism,” Roberts is (in Bravin’s words) “the perfect pick.”
“Everything he has done has been consistent with” originalism, says Mr. Meese, who worked with Judge Roberts in the Reagan White House. “The president [George W. Bush] is convinced that he is a constitutionalist in the same way that Scalia and Thomas are,” Mr. Meese adds.
Liberals may be cheered, if that’s possible, to read: “Unlike Justice Scalia — and some of the other candidates the White House considered as replacements for Justice Sandra Day O’Connor — Judge Roberts is not a leader of the movement known as originalism.” They will be less cheered by the fact that, while not a “doctrinaire originalist,” “Judge Roberts has spent much of his professional life working around advocates of originalism, and he is skilled at deploying [originalist] arguments …”
Bravin cites a 1999 interview on National Public Radio, in which “Judge Roberts suggested that originalism was his starting point. Looking at an issue ‘the way it was in 1789 is not a bad [approach] when you’re talking about construing the Constitution,’ he said.”
What’s wrong with originalism? Bravin writes further:
That comment prompted questions at [Roberts’s] 2003 confirmation hearing for the appeals court. Sen. Patrick Leahy, a Vermont Democrat, noted that “the Constitution in 1789 did not have the Bill of Rights,” which was adopted two years later and that other compromises struck in the 18th century allowed slavery and “limited state power to make or enforce laws to deny equal protection to people. So the originalist’s concept can’t be an exact one, can it?”
If it’s any consolation:
Judge Roberts took pains to separate himself from a rigid approach and suggested that all judges were originalists to some extent. “I think we are all literal textualists when it comes to a provision in the Constitution that says it takes a two-thirds vote to do something,” Judge Roberts said.
“On the other hand, there are certain areas where literalism along those lines obviously doesn’t work,” he said. “I think different approaches are appropriate in different types of constitutional provisions.” He cited the broadly worded Fourth Amendment as an area where “the text is only going to get you so far.”
In addition to the bumper-sticker issues, Bravin’s article reminds us:
The court’s next term is already loaded with disputes that touch on core rights. One case concerns the First Amendment rights of public employees; another, whether states have immunity from lawsuits. A third involves the right of colleges to exclude military recruiters while receiving federal aid. Yet another case on the docket involves a central Warren Court precedent derided by originalists: the 1966 opinion that created the famous Miranda warnings for criminal suspects.
The Journal is keeping the story online for the next few days. After that it goes into archive with the toll booth. So read the whole story before it disappears from the free world.
