What kind of Justice will we get?

Posted: Jul 22, 2005 12:00 AM

WASHINGTON -- Having learned the lessons of the Bork fiasco, when Teddy Kennedy libeled Robert Bork on the floor of the Senate within minutes of Bork's nomination -- a speech that became the reference point for the entire nomination fight -- this White House put its new man out front first. The television tableau was perfect. President introduces attractive, boyish-looking, hornless judge to the nation, with wife in the wings and two adorable kids in tow. A John Edwards moment.
 As impressive as the choreography are the president's ambitions. He remains committed to doing big things. The president who has set reforming Social Security as the centerpiece of his domestic policy and democratizing the entire Middle East as the centerpiece of his foreign policy was obviously interested in making history with his first Supreme Court appointment.

     And there were two kinds of history available to him -- ethnic or ideological: nominating the first Hispanic, which is a history of sorts, or nominating a young judge who would move the court to the right for the next 25 years. Bush eschewed the more superficial option and went for the real thing. 

     Or so he thought. But did he?

     John Roberts is obviously a brilliant lawyer with a history of attachment to conservative administrations. On constitutional matters, however, he is a tabula rasa. He's been an advocate advancing his clients' opinion and interests. That tells us little. And in just two years as a circuit court judge he's made no great, or even important, pronouncements. Nor does Roberts have significant speeches or law review articles to his name. If he has a judicial philosophy, we don't know it.  Nor does he -- having told the Senate Judiciary Committee in 2003 ``I think I'd have to say that I don't have an overarching, uniform philosophy."

     In the absence of a record, there has been a search for scraps, such as a five-paragraph dissent on the case of the arroyo toad. It's a federalism case in which Roberts dissented from the opinion that the Endangered Species Act allows the federal government to prohibit a developer from putting up a fence that would impede the movements of said toad.

     The cover for the ESA is of course the interstate commerce clause, which is the wedge by which the federal government has become the regulatory state never intended by the Founders. Roberts seems to want to limit the commerce clause to permit federal jurisdiction only when the activity itself is interstate. If only the toad would schlep itself even occasionally to Reno, Roberts would gladly enjoin anyone who would molest it. Unfortunately, Roberts points out drolly, the ``hapless toad ... for reasons of its own, lives its entire life in California.''

     This is a thin reed on which to hang a constitutional philosophy. But it's about all we got. Does this portend a justice who will demolish the underpinnings of the regulatory state and seven decades of commerce clause precedent?

     Who knows. But I doubt it. Remember, in the most recent commerce clause review, the California marijuana case, even Antonin Scalia, no enemy of the wrecking ball, refused to follow Clarence Thomas in using the case to undermine the very expansive modern interpretation of the commerce clause.

     And Roberts is no Scalia. I think. Like just about everything else we can say about him, this guess is educated only by the meager record, and by Roberts' traditional, conventional life trajectory. And perhaps even by his opening remarks on national television, where he spoke with reverence of the institution to which he has been nominated -- from which one might infer (now we're really grasping at straws) -- that he might be reluctant to overturn precedent.

     But if he is no Scalia, is he an O'Connor -- who moved so steadily leftward through her Washington career that she has become a retroactive icon, a paragon of principled conservatism, to liberal advocacy groups today?

     We know that Scalia and Thomas would overturn Roe v. Wade tomorrow. As would Rehnquist, for whom Roberts clerked and to whom he is being most closely compared.

     O'Connor, on the other hand, not only upheld the abortion precedent, but invented an even more radical constitutional principle to justify her decision. The notorious pronouncement that ``at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'' opened the door to the Texas case ruling anti-sodomy laws unconstitutional, and Massachusetts' legalization of gay marriage on constitutional grounds.

     It is almost impossible to imagine Roberts doing something as grand as that. He would not have the audacity. My guess? He upholds Roe, purely for reasons of precedent. And very quietly.