Roberts Day At The Asylum

Well, hell, my better half just put up a thoroughly scathing evisceration of the argument as to whether or not Roberts violated the law, and seeing as how I have my own story on Roberts to disseminate, we’ve decided to deem today "Roberts Day" here at the Asylum. The WaPo (Washington Post for those non-bloggers out there unfamiliar with the lingo) put up an interesting column today. It was written by Cass Sunstein, who is anything but a conservative. (He wrote a book called "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America." ‘Nuff Said!)

But I’m not going to beat up on Mr. Sunstein, and his obviously ignorant opinion of where the Courts are on the ideological spectrum. (Though it does remind me of the nay-sayers that contend there is no liberal media bias.) No, not today. And no, I’m not sick. No, Mr. Sunstein wrote an article talking about Roberts, and in it Mr. Sunstein includes some questions that he would have for Roberts were he on the judiciary committee.

For example, Roberts is perfectly entitled to decline to say whether he would vote to overrule Roe v. Wade. But does he believe that the Constitution protects a general right of privacy? Judge Robert Bork, along with many others, has insisted that the Constitution protects no such right. This position would require the court to overrule cases recognizing the right to use contraceptives, to keep medical records private and to live with members of one's family. Does Roberts accept the privacy right?

And I agree he has a right to dcline such questions regarding Roe. Marcie and I have repeatedly stated that such questions should not even be addressed by an appointee as the high court may decide to revisit the issue, as a whole, which in my opinion it should be. But the question on the right to privacy would be a valid question. Granted, the answer to that question may tip his hat when it comes to the question of Roe, as that was a primary provision in the decision in that case, but it is valid. What are his thoughts on the idea, set down by precedent, that the Fourth Amendment grants citizens an all-encompassing right to privacy rather than what is enumerated in the amendment, which are protections against illegal searches and seizures.

Here's a broader question. Justices Antonin Scalia and Clarence Thomas believe in "originalism" -- the view that provisions of the Constitution should be interpreted to mean what they meant at the time they were ratified. When President Bush speaks of "strict construction," many people think that he means to endorse originalism. Is Roberts an originalist? Or does he think that the meaning of the Constitution evolves over time?

To be fair, we are both of the mind that Justices Scalia and Thomas properly interpret the Constitution. The "originalism," or "textualism," that they adhere to involves a great deal of research in determining what the amendments state, and what they mean. It involves going back into the past, digging through records, digging through dictionaries, etc., to determine what the Framers meant when they wrote the Constitution and the Bill of Rights. And I’d like to point out that there is a significant difference between a "strict constructionist" and an "originalist."

An originalist, or textualist, believes that laws, especially the US Constitution, say what they mean, and mean what they say. If the proper meaning of the text is clear, jurists should then determine whether it provides support for the claimed right or the authority of the government. If so, then the claim is valid. If it’s not, then the claim is rejected, and the analysis is complete. Strict constructionists believe that all words within the law should be interpreted narrowly.

"For example, where a strict constructionist might see the First Amendment as protecting ‘speech’ and ‘press’ and only activities that fit into one of those categories, Scalia says the First Amendment communication more generally. Thus, while a handwritten letter might not fall under ‘speech’ or ‘press’ for strict constructionists, he thinks such a letter is undoubtedly protected by the First Amendment." –Scalia Dissents by Kevin A. Ring

An originalist does not believe in a "living, breathing" Constitution. In one of his most amusing rebuttals, Scalia proclaims—and I agree with him wholeheartedly—that he prefers his Constitution "dead." There is an enumerated process to amend the Constitution, and it should only be done in that manner.

Many people object to judicial "activism." But there is intense disagreement about what this phrase means. Some people think that a court is playing an activist role when it strikes down acts of Congress -- as the Rehnquist Court has done on more than 30 occasions. What does Roberts understand by the idea of "activism"?

Activism, in the overall sense, does not merely refer to the striking down of acts of legislation. Activism refers to the use of judicial fiat to overule duly enacted laws that a minority of society disagrees with. Griswold, Roe, Lawrence, Stenberg, Casey, and Kelo are examples of judicial activism that not only usurps power enumerated, such as those to states (through the Tenth Amendment), or to the people directly (as the Fifth Amendment does, and Kelo overruled.)

The Constitution does not explicitly forbid the national government from discriminating on the basis of race or sex. Nonetheless, the Supreme Court has read the Constitution to ban both forms of discrimination. Some conservatives disagree; they think that the Supreme Court has no legitimate basis for prohibiting either racial segregation or racial profiling at the national level. What does Roberts think about the question of whether the national government can engage in discrimination on the basis of race and sex?

In the technical sense, this is true. The direct "you-can’t-discriminate" amendments in the Constitution are not broad. They are specific. Below are those amendments that deal with the prohibition of discrimination.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. –14th Amendment, Section 1

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. –15th Amendment, Section 1

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. –19th Amendment, Section 1

The Fourteenth Amendment is all encompassing to forbid the discrimination of citizens. It prevents the privileges and immunities from being revoked from the citizens. The Fifteenth and Nineteenth Amendments are the only two amendment which cite race or sex, and they have been expanded to encompass all privileges, immunities, and rights, though the amendments only stipulate the right to vote. Now, legal precedent that has been set, such as in Brown, struck down the idea of racial segregation in schools. Will Roberts vote to overrule that decision should it ever be appealed? I highly doubt it.

On the issue of racial profiling, however, he may side with those that believe racial profiling is correct. The problem with the Left in regard to racial profiling is if you have a suspect description, it ceases to be profiling, and you are seeking a man/woman that matches the physical description, whether they be white, black, Hispanic, Asian, or Middle-Eastern, and there is nothing wrong with that. The police do it everyday. If a call comes through that a white man has robbed a convenience store, the police aren’t going to harass an Asian for it.

But as for Mr. Sunstein’s observations regarding the questioning, he is quite correct. Specific cases are a no-no. But where he stands on his jurisprudential beliefs are fine. I could answer those questions without a hitch, provided they’re phrased the right way, in the right fashion, and in such a way where I would not tip my hat on a specific case.

Publius II