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John Roberts, the progressive

By The Monitor's View / September 19, 2005



As much as nominee John Roberts claims he would act merely like an umpire on the Supreme Court, his Senate testimony last week revealed a strong belief in how justices can bring a measure of progress, possibility, and promise to American citizens.

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Judge Roberts tried to persuade skeptical senators that a justice can be quite capable of staying clear of any ideology. But he also said the very independence of the courts from both policymaking and policymakers is the very reason the United States has "been able to make progress in the area of rights, and not had just empty paper promises."

How has such progress been achieved?

To curb injustice, such as discrimination, "the best thing the courts can do," he said, "is enforce the rule of law and provide a level playing field for people to come in and vindicate their rights."

That requires a strong neutrality. Roberts likes the fact that one of his mentors, the legendary Judge Henry Friendly of the US Court of Appeals for the 2nd Circuit, would often leave many newspaper editorial writers chastising him for being too liberal or too conservative - all for the same opinion.

A judge like that doesn't take a case with a result already in mind, but simply weighs the facts of the case against the Constitution, the law, and the precedents of previous court decisions.

"You look outside yourself to other sources," Roberts stated, emphasizing a need for judicial humility. Justices wear black robes to symbolize they're not just individuals promoting their own views. "That's the ideal," he said. But it's an ideal he recognizes can be tarnished when so many Supreme Court decisions come down with a 5-4 split.

Even among justices on the same side of a vote, they each often write a separate opinion with different reasoning. If confirmed as chief justice, Roberts's top priority is to nudge the justices toward "a greater degree of coherence and consensus," so that "the court speaks as a court."

As in many marriages, the ability to adhere to the rule of law isn't always perfect. But rather than give up on that ideal, it's almost always worth the struggle to keep striving for it.

In many ways, Roberts is both a fundamentalist and a progressive. His professional passion, first as a lawyer and now as an appellate judge, has been for the rule of law, "because without it any other rights that you may agree with as a matter of policy are meaningless. You need to have courts that will enforce the rule of law if you're going to have rights that mean anything."

The court's job is not to solve society's problems, he said, but then if the courts are presented with a challenging case - such as school segregation - the justices can radically change America's future, as they did in 1954 with Brown v. Board of Education, citing a violation of equal protection under the Constitution. Sometimes, courts overreach, as in the 1857 Dred Scott decision that sanctioned slavery.

As the Senate moves to a vote on Roberts for chief justice, it must not judge him narrowly on ideological disputes, such as abortion or end-of-life issues. Rather, ask if he can, in his own words, safeguard the liberties "that make this land one of endless possibilities for all Americans."

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