After reading some of John Roberts’ memos from the White House counsel’s office in the early 1980s, I have thoughts on him beyond his heartthrob status: I like him. Forget that he’s generally conservative, but apparently not a rigid ideologue, or particularly polarizing. He blames the Supreme Court for its own bitchiness in the 1980s:
In early 1983, Mr. Roberts was asked to analyze a proposal pushed by Warren E. Burger, then the chief justice, to create a new, national-level federal appeals court to relieve some of the Supreme Court’s workload.
Mr. Roberts wrote in a memorandum to his boss, Fred F. Fielding, the White House counsel, that he thought creation of the new court, known as the intercircuit tribunal, was a “terrible idea.” Mr. Roberts, who is President Bush’s nominee to the Supreme Court, said the court had only itself to blame for its burden of cases.
“If the justices truly think they are overworked, the cure lies close at hand,” Mr. Roberts wrote. “The fault lies with the justices themselves, who unnecessarily take too many cases and issue opinions so confusing that they often do not even resolve the question presented.”
He wrote that if the court took fewer death penalty and prisoner-rights cases, the docket would be cut by at least a half-dozen cases a year. He added a comment that may signal his view of the Supreme Court’s proper role.
“So long as the court views itself as ultimately responsible for governing all aspects of our society, it will, understandably, be overworked,” Mr. Roberts wrote. “A new court will not solve this problem.” [emphasis mine]
He hits the nail on the head, a problem that hasn’t much changed in the 2 decades since: The Court pens far too many decisions with no clear agreement on what they mean, and it inserts itself into largely political disputes, speaking on high with no accountability. Hence Roberts suggested this:
Later in 1983, Mr. Roberts addressed a proposed constitutional amendment setting a 10-year term of office for federal judges. The Justice Department opposed the measure on the ground that life tenure was critical to judicial independence. Mr. Roberts did not disagree, but noted that the framers had adopted life tenure at a time when life expectancy was significantly shorter. He then made an argument in favor of limited terms.
“Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence,” Mr. Roberts wrote. “It would also provide a more regular and greater degree of turnover among the judges.”
He went on to argue that lifetime tenure was more defensible when judges limited themselves to strict application of the Constitution. When judges strayed into social policy-making, he said, they made a case for limited terms. “The federal judiciary today benefits from an insulation from political pressure even as it usurps the roles of the political branches,” he said. [my emphasis]
I know the notion of an eternally-independent judiciary is an attractive concept to most people, who have little love for our eternally squabbling and risible politicians. Reason even ran a libertarian ode to judicial activism in its July issue. But about the only remaining divide between the High Court and Congress now is the justices never face the voters. They squabble just as much, create bizarre “tests” to determine constitutionality just as suspect as anything Congress has done, and sometimes explicitly reject Congress’ own explanation of what its laws mean. This shouldn’t be a conservative/liberal dispute, since the Rehnquist court has often stretched policy issues like crime and due process beyond congressional authorization. Most recently, the court’s eminent-domain decision in Kelo has brought together the polarized sides to quickly fight the powerful temptation state and local governments now have to seize property in a Mugabe-lite game of Spoil the Developer.
Constitutional changes are extremely difficult and infrequent, but if Roberts is still sticking with his critiques of the Court’s case load and lack of accountability, I think that speaks in his favor for confirmation. I’d prefer quality over quantity in my robed overlords.
I’m a tech journalist who’s making a TV show about a college newspaper.