A Model of Judicial Restraint, Not Activism

Published September 6, 2005

Los Angeles Times

THE DEATH OF Chief Justice William H. Rehnquist and President Bush’s nomination of Judge John G. Roberts Jr. to succeed him have led to a brief delay in the opening of Roberts’s confirmation hearings — and Democrats are using the occasion to demand more of Roberts’s legal records.

But the Senate Judiciary Committee has an ample record on which to proceed. The White House’s release of more than 50,000 pages of documents from Roberts’s service as a White House and Department of Justice lawyer in the 1980s is unprecedented: No Supreme Court nominee has ever had his confidential legal work more fully disclosed to public scrutiny than John Roberts.

The phased releases of these Reagan-era records have predictably generated a series of morning-after news stories summarizing — sometimes accurately, sometimes not — the particular documents that seem to bear on hot-button issues. These documents shed varying degrees of light on Roberts’s views from two decades ago.

We know, for example, that Roberts steadfastly defended the “bedrock principle of treating people on the basis of merit without regard to race or sex” and therefore opposed racial and gender quotas as well as forced busing of public school students.

We also learned about his defense of equal-pay statutes and his appropriately scathing critique of the radical “comparable worth” theory, which would require an army of bureaucrats to set the wages of all workers throughout the American economy.

We know that Roberts both described abortion as a “tragedy” and eloquently denounced those who resorted to violent measures against abortion clinics.

And we know that he supported the government’s traditional role in affirming, acknowledging and promoting respect for religion generally while avoiding any sectarian endorsement of particular religions.

In other words, Roberts’s records show him to be a strong and principled legal conservative with views that resonated, then as now, with most Americans.

But the clearest insight on how Roberts would approach constitutional decision-making is not provided by these isolated documents on hot-button issues. It is instead reflected in Roberts’s consistent commitment to the jurisprudence of judicial restraint, a commitment that pervades these records.

Roberts’s understanding of judicial restraint — and of its opposite, judicial activism — is comprehensively spelled out in two articles he drafted for Atty. Gen. William French Smith in 1981 and 1982. In these draft articles, Roberts explained that judicial restraint was required by “the institutional role of the courts in our federal system and the scheme of separation of powers.”

Judicial activism occurs when “[j]udges read their personal predilections into the flexible terms of the Constitution, at the expense of the policy choices of the elected representatives of the people.” Indeed, the “greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and engaging in policymaking.”

In particular, Roberts extensively criticized “so-called ‘fundamental rights’ and ‘suspect classes’ analyses (under the due process and equal protection clauses of the 14th Amendment), both of which invite broad judicial scrutiny of the essentially legislative task of classification.”

For example, he wrote, while we all “may heartily endorse a ‘right to privacy,'” it does not follow that courts “should discern such an abstraction in the Constitution [and] arbitrarily elevate it over other constitutional rights and powers by attaching the label ‘fundamental'” to it.

Judicial restraint is not to be confused with blind adherence to precedent. To be sure, any justice should recognize, as Roberts stated recently in his Senate questionnaire response, the “important role” that precedent plays “in promoting the stability of the legal system.”

But as Roberts explained in his 2003 confirmation hearing to his current D.C. Circuit position, in the end no deference should be accorded to wrong constitutional precedent: “[O]bviously if the decision is wrong, it should be overruled. That’s not activism. That’s applying the law correctly.”

For decades now, the left has relied on the courts to entrench in the guise of the Constitution the substantive policy positions that it cannot enact through the democratic process. And the stunning series of undeserved victories it has been handed — on capital punishment, criminal procedure and abortion, to name just a few — and the increasing unpopularity of its positions have made it both greedy and desperate for more.

The left now wants judges to impose same-sex marriage nationwide, to strip “under God” out of the Pledge of Allegiance and to subject American citizens to rules developed by foreign and international bureaucrats.

By contrast, jurists whom the left derides as “conservative extremists” would not impose conservative policies on any of these issues but would instead leave the issues to the American people to resolve.

If the people of a state, for example, want to enact same-sex marriage through the democratic process, Justices Antonin Scalia and Clarence Thomas would defer to their decision — as they likewise would if the people decide to retain traditional marriage. Scalia and Thomas would do so not because of any position they have on the wisdom or prudence of either policy but because they recognize that the Constitution does not authorize the courts to second-guess the political processes on such questions.

Consistent with his judicial record, Roberts’s Reagan-era documents establish that he is a long-standing and committed proponent of judicial restraint. That’s why all Americans who are faithful to the Constitution should support Roberts’s nomination.

—Edward Whelan, a former law clerk for Justice Antonin Scalia and a former counsel to the Senate Judiciary Committee, is president of the Ethics and Public Policy Center in Washington, D.C.

Most Read

This field is for validation purposes and should be left unchanged.

Sign up to receive EPPC's biweekly e-newsletter of selected publications, news, and events.


Your support impacts the debate on critical issues of public policy.

Donate today