Several commentators recently pointed out the differences between John Roberts and Sandra Day O'Connor: Gina Holland surveyed the differences between their substantive views on hot-button issues including police power, school prayer, and abortion. Jonathan Turley derided O'Connor for opinions that were "inconsistent, political and outcome-driven," adding that "Roberts, to his credit, is no Sandra O'Connor." And Craig Green wrote recently in the New Jersey Law Journal that O'Connor's fondness for real-world compromise stands in stark contrast to Roberts' inside-the-beltway ideological conservatism.
But it seems to me that the single biggest difference between the two jurists lies not in their respective ideologies, intellects, or job experience. The key difference is just this: O'Connor had a deep and abiding belief that government (and especially the court) could help people, while Roberts seemingly believes that no problem is too big for government (and especially the court) to ignore.
The most prevalent criticism of O'Connor—from writers across the political spectrum—was that she believed the court could and should intervene in every dispute, large or small. She may have been a minimalist or incrementalist in that she dealt with cases one at a time. But she sure was grandiose in her view of what the court should do with its powers. Jeffrey Rosen, in a New York Times Magazine profile—"A Majority of One"—famously charged her with being all-too-ready to place herself "not only at the center of the court but also at the center of American politics." O'Connor, in theory a strong backer of states' rights and the power of legislatures, was always prepared to second-guess them if she thought the court could cobble together a better fix.
A look at the writings of John Roberts suggests quite the opposite mind frame: Roberts' hostility toward activist judges and the courts is one of the enduring features of his career. Whatever you may think of the 108-page report on Roberts, released this week by the Alliance for Justice, one of the consistent themes is that he sees almost no role for courts as remedial institutions. Judges should limit themselves to interpreting the law, parsing statutes, and nothing more. Anything else, he feels, is overreaching.
So Roberts has made it his work to try to hobble the courts, be it by approving court-stripping legislation, cutting off access to courts for classes of plaintiffs, limiting the reach of federal statutes, or curbing the power of the courts to remedy injustices. The best courts, it seems, are bound, gagged, and left to huddle in a closet. One sort of wonders why the job of judge appeals to him in the first place.
Take Roberts' expansive views on the constitutionality of court-stripping legislation: In a memo from 1984, Roberts defended legislation that would have yanked busing cases from the hands of the courts—even when his superiors at the Justice Department thought the proposed bill went too far. Court-stripping legislation isn't merely an attack on the courts' prerogative to review the constitutionality of a law. It cuts off access to justice, telling wronged parties they deserve no remedy.
Roberts similarly sought to narrow the reach of 42 USC Section 1983, the federal law that allows us to sue the government when we are deprived of our federal rights. While working at the Solicitor General's office under George Bush I, Roberts authored an amicusbrief in Wilder v. Virginia Hospital Association, a case in which the state of Virginia disputed whether it must reimburse hospitals for Medicaid claims at reasonable rates. The Supreme Court disagreed with Roberts' argument that the Medicaid Act created no enforceable rights. As the Alliance for Justice report notes, "Medicaid patients ... would have had little recourse for protecting their benefits if Judge Roberts' view had prevailed."
Roberts has also been a tireless warrior in the fight to limit access to the courts with respect to Title IX—the federal statute that attempts to remedy gender discrimination in education. Roberts has urged narrowing the interpretation of the statute so as to render it vastly less effective. He urged the Bush I administration not to get involved in a case brought by female prisoners saddled with disparate vocational programs. He also authored an amicus brief in Franklin v. Gwinnett County Public Schools, contending that a student sexually abused by her high-school teacher was not entitled to compensatory damages under Title IX. The high court disagreed with him, concluding that Roberts' position would have left the girl with "no remedy at all."
"No remedy at all," in case after case. And all the while, Roberts has argued for narrowing the "standing" requirements—the rules about who gets to walk into a court with a controversy, most notably when they want to protest an environmental hazard or degradation.
Roberts has tried to cut courts off at the knees by limiting their ability to grant relief—including their power to impose consent decrees to improve conditions in prisons or schools. He has advocated that the Justice Department's Civil Rights Division shouldn't be entitled to grant back pay or offers of employment when settling disputes over schools with discriminatory practices. And Roberts has celebrated the Rehnquist Court's newfound love affair with the 11th Amendment—a piece of truly bonkers constitutional doctrine that's being used to keep state employees from suing their own state governments and is a far broader application of the idea of sovereign immunity than the amendment itself contemplates.
Finally, as a judge on the D.C. Circuit Court of Appeals, Roberts signed off on Hamdanv. Rumsfeld, an opinion that told Guantanamo detainees named "enemy combatants," and thus subject to President Bush's new McGuilty Commissions, that they were plumb out of luck if they sought redress in the U.S. courts. This on the heels of the explicit 2004 Supreme Court ruling that such prisoners were entitled to file habeas petitions in federal court. The response of Roberts and his colleagues on the Hamdan panel? Go ahead, file your petitions, but no court can ever grant you relief.
What does it mean when a judge spends so much energy barring the courtroom door to citizens seeking relief? Is it proper when the courts are forced to say, "Sorry about your rape/discrimination/job/environmental hazard/crap schools/what-have-you, but there's just no relief to be had"? Are we comfortable with a judge so willing to dismiss civil rights, environmental, disability, voting, workers, and race complainants as undeserving, whiny masses?
At first blush, all this judicial deference and humility looks like a good thing—a correction for overzealous "activists" like Roberts' soon-to-be predecessor O'Connor. Certainly it's tempting to agree with Slate reader Steven Ehrbar, who feels that judges have plenty to do interpreting the law and don't need to be busying themselves fixing problems. But I'm still a bit partial to that old-fashioned, biblical view of judges as people who resolve disputes and remedy injustice. I still think there's a role for judges simply doing equity, making things fair, especially for the people who don't have the governor on speed dial.
From the day his nomination was announced, one word has been associated with John Roberts more than any other: "humility." While Sandra Day O'Connor has been called many things in her jurisprudential career, "humble" isn't one of them. But it seems to me that sometimes judges must be brave as well as humble. They must care when the world isn't fair. Judicial restraint isn't an end in itself. The end in itself should be doing justice, and sometimes that means listening to the whiny masses, one case at a time