In Rosen's initial prediction, you can see another reason for Roberts' appeal with moderate academics: Supporting him was a way to signal that you thought the debate about who should be on the court ought to be about judicial temperament rather than ideology and vote counting. Roberts wouldn't twist precedent, professors like Cass Sunstein of the University of Chicago wagered. He'd carry the torch of judicial modesty: Judges shouldn't reach beyond the facts of a case to settle big questions, they should hesitate to strike down laws passed by Congress, they should know their place as the least-dangerous branch. Praising Roberts for his lack of "bravado and ambition," Sunstein wrote in the Wall Street Journal pre-confirmation, "Opposition to the apparently cautious Judge Roberts seems especially odd at this stage."
So, what do they say now? When I e-mailed them yesterday to ask how they felt about their past support for Roberts, Rosen and Lazarus politely declined to say. (Lazarus is worried about being boiled down to short and misleading quotes; Rosen says he's planning to write about this himself.) I haven't heard back from Kendall. (Update: Here's his response, and mine to him.) Sunstein offered this, "I'm surprised that Roberts has shown no unpredictability at all; in the big cases, he's been so consistent in his conservatism. I thought that he was too careful a lawyer to be so predictable!" His point, which he expands on here, is that because minimalists take each case as it comes and attend closely to precedent, they sometimes reach conclusions that you wouldn't expect from them. Roberts has done none of that. Take the abortion case: The court in 2000 struck down a state statute banning a form of late-term abortion. The logical next step was to strike down the federal ban. Instead, the opinion Roberts joined unconvincingly sidestepped the earlier decision and upheld the new law.
In the end, Roberts' approach isn't leading him to vote differently than Thomas and Scalia, the justices with the "ideologically driven" reputations. Yes, he disagrees with them about whether to heave over precedent rather than dance around it—and he has felt the Wrath of Scalia as a result. But as Walter Dellinger and Dahlia Lithwick have so expertly explored in Slate this week, there's nothing principled or restrained about overruling cases "while pretending you are not." The reassurances to the left about Roberts' virtues look pretty empty this week. And just wait until Roberts becomes a court veteran. The longer he's there, the less relevant keeping or chucking past decisions will be, and the more he'll build, from case to case, on the opinions he has written himself.
In those preconfirmation days in 2005, there was one more argument for broad support for Roberts and Alito. Benjamin Wittes, a member of the Washington Post editorial board when it backed both of Bush's picks, reminded me of it in an e-mail this morning. He has no regrets about his support for Roberts, because he expected to disagree with him on key votes and thought he should be confirmed nonetheless. "Presidents have a legitimate right to move the courts and the principal check on this power is not the confirmation process but, rather, a certain ideological diversity of presidents over time," he writes. You can't argue over the president's power. But you can ask whether smart and influential people who disagree with a president's plans for the court need help him along. It's a good question, anyway, for the next time around.
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