How to Judge the Roberts Supreme Court

Article excerpt

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. …

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