Supreme Court: The selection and acceptance of a Supreme Court Justice: John Roberts

Judicial activism vs. Judicial restraint . . .

The nomination of a US Supreme Court Justice is a very important matter, much more so since Dred Scott v. Sanford, 60 U.S. 393 (1857) and much more recently since Cooper v. Aaron, 358 US 1 (1958).

A bunch of old white men, throughout most its existence, with the occasional minority and woman. Why should they matter? For most of the Supreme Court's history, they mattered mostly to people with specific issues before the court (and those with very similar issues).

The US Supreme Court was intended to be the weakest branch, and to have limited power. Today, it could argue that it is a very powerful branch, one that could conceivably be said to have more apparent power than the other two branches. The checks and balances, though, are still in place. They have just not been overly used to keep the US Supreme Court's power in check.

1803 - Marbury vs. Madison - the case that started it all? Narrowly the case noted that the US Supreme court did not have the power to do what Marbury wanted the court to do. Basically, the US Supreme Court found for itself the power of Judicial Review, the ability to say that a particular law is unconstitutional. The case laid the foundation for, but is not the basis of Judicial Supremacy.

1857 - Dred Scott - For the first time the US Supreme Court acquired for itself the power to make law. Dred Scott was an escaped slave that fled to the North, supposedly free territory, and basically sued for the right to be free. The US Supreme Court stated that Scott did not have standing because he did not have standing. The court could have stopped there, but went further. Furthermore, the court said, that no black had standing, free or otherwise, because they are/were not citizens of the USA. And then the court went further. Furthermore, the compromise law that outlawed slavery in the western territories is unconstitutional.

Neither the US Congress, the US president, and future US president Abraham Lincoln particularly liked this decision. Basically, the Courts grab for power resulted, some would say, in the eventual civil war.

1958 - Cooper v. Aaron - A politician is paid back for "delivering" California's electoral votes to President Eisenhower by being made Chief Justice of the US Supreme Court (Earl Warren). He uses his new office to impose his legal and political beliefs on the nation. The case could have been narrowly decided, but Warren's court went further. The case involved the desegregation of public schools in Arkansas. Little Rock asked for a postponement and a district court allowed them a postponement. The lower court's decision was reversed by the US Court of Appeals, and the US Supreme Court affirmed the decision. Warren's court went further, though, beyond just affirming the decision, to basically noting that the US Supreme Court is the supreme law in US Constitutional matters - Judicial Supremacy.

Today: Most of the current Justices are firm supporters of Judicial activism, going beyond the US Constitution, or seeing the US Constitution as an "evolving, living" document to make law, and sometimes basing their decisions not on the US Constitution, but on international law (and explicitly noting that fact).

The Hoover Institution has an interesting transcript of a program that aired in October 27, 2003, that some might find informative.

2005 - Justice O'Connor retires, John Roberts nominated. O'Connor followed the judicial activist path (for the most part). How would a Justice Roberts decide cases? Following judicial restraint (following a path that tries to stick to the "founding principles" and the US Constitution) or following the judicial activism path?

Based on his work as a US Circuit Court judge, his private practice work, and his work for the US government, the answer is undefined. It appears that he has some affinity to the rule of law and precedent but is otherwise something of an unknown.

White House transcript of Bush nominating Roberts.

US DOJ biography for John G. Roberts.

Alliance for Justice collection of resources (an anti-Roberts organization: “At this time, Alliance for Justice cannot support Judge Roberts’ elevation to the Supreme Court").

List of some of the cases Roberts worked on at the DOJ.

Fact Check.org article "NARAL Falsely Accuses Supreme Court Nominee Roberts"

Opinion Journal's article on the same ad.

Opinion Journal article: "The Original Borking"

Confirmation Hearings begin September 6th: a preview on the NPR.org website.

"Interest groups line up on Roberts nomination" - article in Boston.com News.

Around the Blogosphere:
"John Robert's Attitude" - comments on those attacking Robert's attitude at the age of 17.
"Judges are SUPPOSED to make laws " - linking an news item found on Yahoo.com (I believe that it was originally on USA Today.com).
"Telling the Truth" - another link to that USA Today.com article (more connections to John Roberts found on that blog).