How to Judge the Roberts Supreme Court

By Roosevelt, Kermit | The Christian Science Monitor, July 6, 2007 | Go to article overview
Save to active project

How to Judge the Roberts Supreme Court


Roosevelt, Kermit, The Christian Science Monitor


With a flurry of 5-to-4 decisions handed down at the end of June, the Supreme Court served notice that things are changing at One First Street.

We should pay attention.

The Court is powerful and important. Its ability to strike down state and federal laws means that it sets the government's boundaries. It also plays a leading role in articulating America's constitutional commitments. It gives substance and definition to the majestic generalities of the Constitution, phrases such as "due process" and "equal protection." In a real sense, the subject of Supreme Court decisions shows who we are as a people, what values we hold dear.

With so much power concentrated in the hands of so few, citizens must be able to evaluate the court's performance.

Activism vs. fidelity is flawed

Conventional wisdom focuses on a distinction between what we could call activism and fidelity. Faithful judges (the good ones) apply the law regardless of their own views. Activist judges (the bad ones) rule based on their own preferences.

This model of activism and fidelity is the one Chief Justice John Roberts invoked in his 2005 confirmation hearings when he promised to be an umpire, not a player.

Unfortunately, it is useless in evaluating decisions because it offers unrealistic caricatures on both sides. True activists don't exist; all judges believe that they are faithfully applying the law. But objective umpires don't exist either, because the Constitution does not provide clear answers in hard cases. That is what makes them hard. Consider some of the most controversial decisions from the just-concluded term.

Does the Constitution's protection of the freedom of speech mean that Congress cannot regulate corporate political advertisements that in effect endorse or oppose particular candidates? Does it mean that school officials cannot regulate off-campus speech by students? Does the guarantee of equal protection mean that school boards cannot take an individual's race into account in assigning students to public schools in order to promote racial integration? And how does the due process clause apply to a ban on partial-birth abortion?

Anyone who is candid about these questions will admit that the Constitution itself does not tell courts how to decide them. The Constitution indicates that some values - speech, equality, and liberty - are important. But it does not explain how to balance those values against competing government interests, or even how, precisely, these values should be understood.

Nor, in fact, does the Constitution say that the task of balancing values and interests is given to judges alone. Other people can balance, too, perhaps better than the court. Maybe Congress is better at figuring out what regulations will mitigate the corrupting influence of money on politics. Maybe the president is better at deciding what national security requires. Maybe school administrators are better at deciding what measures will fulfill their educational missions.

The key question is not whether judges are activist or faithful. It is when the court should be assertive in enforcing a constitutional provision, disregarding the views of others, and when it should be deferential, respecting their views. Understanding that the key choice is the one between deference and assertiveness takes us away from useless rhetoric about activism and back to basic principles of American government.

Judicial review is the court's contribution to the separation of powers, its role as check and balance in our system of divided government. The question we should ask is when do we want the Court to be a meaningful check on the president and Congress, a meaningful supervisor of the states? And when do we want the political branches to have the last word?

With this question in mind, we can evaluate the court's performance by asking whether its choices of deference and aggression can be explained by any principle.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

How to Judge the Roberts Supreme Court
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?