How to judge the Roberts Supreme Court

To ask how activist it was is useless. It's wiser to review why the court was either deferential or assertive.

from the July 6, 2007 edition

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A mirror for society

How can we explain these decisions? The absence of a pattern suggests that what might look like deference is actually agreement. The Roberts court does not leave issues to the political process when it thinks that others are better at balancing. It upholds government actions only when it thinks the government has gotten the constitutional balance right.

What drives the decisions is not a theory about when deference is appropriate but simply the court's view of the relevant constitutional provisions. This across-the-board assertiveness makes those views especially important.

The Roberts court does not believe that the due process clause provides much protection for the legal right to an abortion. It seems to favor corporate electioneering over student speech. And it believes that all government use of race offends the equal protection clause, whether it is done to segregate or to integrate. Equality, in this view, is not threatened by public schools coming to mirror residential patterns of racial segregation, but rather by the government considering race in trying to promote integration.

These are judgments about America's core constitutional values, about who we are as a people. Such rulings are not required by the words of the Constitution; indeed, for the past 40 or 50 years, Americans have lived with dramatically different interpretations of constitutional law. The court's decisions are holding a mirror up to society. To evaluate its performance, we need only ask if we recognize ourselves.

• Kermit Roosevelt is a professor of law at the University of Pennsylvania and the author of "The Myth of Judicial Activism."

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