WASHINGTON -- John Roberts says, ``I don't have an overarching, uniform philosophy.'' Still, he must have jurisprudential inclinations. Because of his revised nomination, to the office of chief justice, those inclinations merit strict scrutiny, perhaps beginning with the following questions:
The Congress that in 1866 drafted the 14th Amendment's guarantee of ``equal protection of the laws'' clearly thought the amendment was compatible with programs -- e.g., the Freedmen's Bureau, created in 1865 -- tailored to benefit African-Americans. And in 1866, Congress rejected a bill that would have ended segregation of schools in the District of Columbia. Cass Sunstein of the University of Chicago Law School says, ``On historical grounds, it would not be at all implausible to say that the ratifiers of the (Equal Protection) Clause understood it to permit racial segregation as well as affirmative action.'' So what help are ``historical grounds'' when construing the Constitution?
Construing the Eighth Amendment's proscription of ``cruel and unusual punishments,'' the court has said the meaning of that clause changes with ``the evolving standards of decency that mark the progress of a maturing society.'' But Justice Antonin Scalia, citing ``the whole antievolutionary purpose of a constitution,'' says:
``It certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot.''
Is Scalia wrong?
The doctrine of stare decisis -- respect for precedent -- gives the law predictability, and has given citizens due notice of what is probably required or permitted. There are, however, occasions -- for example, overturning Plessy v. Ferguson and the constitutionality of racial segregation -- for abandoning precedent. What characterizes such occasions?
Legislators produce much ``legislative history'' -- committee hearings and reports, floor debates. Should judges study those to discover the ``legislative intent'' behind a law? Or does this lead to what Laurence Tribe of the Harvard Law School calls substituting ``unenacted thoughts for whatever text actually passed through the fires of bicameral approval and presentment to the president for signature or veto''?