On a few rare occasions at this week's confirmation hearings, John Roberts answered a senator's real live question about a real live area of law. These glimpses hardly make up for all the demurrals. Still, they're striking on two counts. They line up Roberts with distinctly minority schools of thought, and they reveal him as a careful opportunist.
On Tuesday afternoon, Democratic Sen. Herbert Kohl of Wisconsin asked Roberts whether judges sometimes "break new ground" because they're acting "in the best interests of our country" (as opposed to because they're uppity troublemakers). Kohl pointed to the indisputably activist, universally hallowed Brown v. Board of Education. Roberts acknowledged that Brown's ban of school segregation was a "dramatic shift." But then he added: "If you look at the Brown decision, it is more consistent with the Fourteenth Amendment and the original understanding of the Fourteenth Amendment than Plessy v. Ferguson. And it's based on the conclusion that the separation of the races in the schools was itself a violation of equal protection. In other words, it's not a departure from the Fourteenth Amendment."
So, now it's Plessy's discredited notion of separate but equal—not Brown—that the 1868 ratifiers of the 14th Amendment wouldn't have seen coming. All along, desegregation was supposed to follow from the end of slavery. Never mind Jim Crow.
The architect of this historical argument is Michael McConnell, a federal-appeals-court judge and respected conservative scholar. In a 1995 article in the Virginia Law Review called "Originalism and the Desegregation Decisions," McConnell argues that the writers of the 14th Amendment understood segregation as a form of inequality. They meant to extend "equal protection under the law" to a broad array of civil rights, including education.
Embracing McConnell's argument helps Roberts on two fronts. It makes absolutely clear that Roberts is not a bigot. He understands the injustice of racial inequality so well that he thinks of Brown as a natural, restorative development in the law. At the same time, Roberts throws the originalists a bone and gets to signal that he's not so sure that judges need to break new ground after all. Sure, Brown broke with precedent by disavowing Plessy. But it did so by restoring the principles that the drafters of the 14th Amendment had in mind. The decision is about originalism, not activism, at its best.
This is lovely, except that McConnell's historical evidence failed to convince virtually anyone who studies this stuff. "As a matter of history, the Fourteenth Amendment was not understood to ban segregation on the basis of race," Cass Sunstein says in his new book, Radicals in Robes(this is the book that Sen. Orrin Hatch keeps referring to when he talks about perfectionists and fundamentalists and whatever-else-ists). Sunstein relegates McConnell to a footnote because other scholars already have parted company with him. Does John Roberts really think McConnell is right and everyone else is wrong?
Roberts' other moment of self-revelation came thanks to a prompt from Sen. Jon Kyl, Republican of Arizona, about the proper role of foreign law in interpreting the U.S. Constitution. This is a live issue that will come before the Roberts Court. Taking a position on it doesn't involve saying how a judge would decide a particular case, but it says something significant about the judge's approach to reasoning. It's also a big fat political hot potato. This spring, in his majority opinion banning juvenile execution, Justice Anthony Kennedy referred to the court decisions and practices of other countries. He pointed out that nobody except the United States and Somalia was still killing people for crimes they'd committed as kids. The far-right ginned up the impeach Tony Kennedy movement in response.
If Roberts had been playing his usual don't-box-me-in game, he would have punted on Kyl's question. Instead he strongly stated his "concern" about the "use of foreign law as precedent." Roberts said, "If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. … Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever."
This position is chiefly associated with Justices Antonin Scalia and Clarence Thomas; in the juvenile execution case, Chief Justice William Rehnquist signed on to it as well. The other six members of the court voiced strong support for using foreign decisions—not as commands by any means, but as sources of possible wisdom. Judges can cite anything they want. What's less democratic about giving a nod to a foreign judge than to William Shakespeare? As long as judges are clear about the limited weight they're giving to foreign law—as they've so far bent over backward to do—scanning the globe for a new idea, or empirical evidence to support an old one, seems pretty common-sensical.
That's the prevailing view in the academy, anyway (though the trend is rued by scholars including Judge Richard Posner). What to make of Roberts' firm stance against citing foreign decisions? It tells the Republicans who have been gnashing their teeth over America's threatened sovereignty that they can rest assured about Roberts on that score. And it does so at little cost, since the Democrats who keep asking about abortion and privacy won't much care or notice. Everyone is happy. Especially John Roberts.