A Quick Response to Todd:
Todd writes below:
While they may both turn out to be perfectly fine Justices, both Roberts and Miers appear to be both uninspired and uninspiring in terms of providing intellectual leadership on the Court. The Administration seems to be narrowly obsessed with winning minor tactical victories (here, an easy confirmation of a stealth candidate) while consistently failing to follow-through with meaningful long-term strategic victories (an opportunity to change the legal culture).
  We don't know yet if this is true for Harriett Miers, but I can't disagree more strongly with Todd about the case of John Roberts. I think John Roberts is ideally suited to provide intellectual leadership on the Court; I think his work is going to have a profound effect on the legal profession and will exert a significant influence on trends in legal thought. Roberts believes deeply in the legal craft and in legal reasoning, and I think his leadership is going to impose a discipline on the work of the Court that will prove highly influential in the legal culture at large. The likelihood of that kind of impact is exactly what made Roberts such an inspired choice.
Couldn't agree more Orin. I had to go back and re-read sentences to make sure he really lumped Miers and Roberts together as intellectual lightweights.

To me, a judicial conservative in the Scalia mold, I would much rather have a Justice like Roberts who'll reason his holdings brilliantly but perhaps disagree with me sometimes, than someone like Miers, who might vote with Thomas and Scalia, but be an intellectual lightweight.
10.3.2005 3:55pm
I've read a large number of Roberts' opinions and I couldn't agree more with Prof. Kerr.

Ideologues like Scalia and Bork tend to issue opinions like they've got the answers all figured out and they're going to be nice enough to share them with you. That's good if you're trying to build a cult of personality but not so useful if you're trying to blaze an intellectual trail for many others to follow. Roberts, because he writes from a position of greater humility, will likely have a greater ability to persuade and win adherents for his judicial philosophy.
10.3.2005 3:59pm
William Patry (mail):
As a lefty and proud of it, i still have to come to Roberts' defense. I think he is a brilliant, earnest, very very conservative guy who will prove to be an outstanding Chief. Miers is, to me no John Roberts.
10.3.2005 4:21pm
MarkW (mail):
While I certainly would agree that there is a clear distinction to be made between Roberts and Miers in terms of their apparent abilities and qualifications at this time, I wouldn't go overboard in praise of Roberts as yet. Let's assume that Roberts turns out to be, as many of his supporters believe, a conservative "minimalist" justice. Which is more likely—that he is another Harlan II or another Stewart, Powell or O'Connor? While Roberts doesn't have much of a judicial record as yet, history suggests that he's more likely to be the latter. In other words, a perfectly satisfactory justice, but not an outstanding one.

Miers, on the other hand—again, there's not much to go on at this point, but unless she has a remarkable talent for hiding a brilliant legal mind under a basket rather than letting it shine, we could be looking at another Minton or Whitaker here.
10.3.2005 5:23pm
AK (mail):
If you're trying to drag the court in a conservative (for lack of a better label) direction, intellectual and rhetorical diversity matters. Scalia and Thomas get lumped together quite a bit, but Thomas is considerably more radical, especially in Lopez, Morrison, and that marijuana case that Randy Barnett lost. That's fine with me; I don't agree with either of them all the time. Scalia is more of an attack dog, Thomas is concise and measured, which makes his radicalism less obvious.

Just because Roberts isn't going to be spitting fire (and we don't know for certain that he won't) doesn't mean he's not a movement conservative. His single biggest task may be to bridge the gap between Prodigal Son Anthony Kennedy and bring him back into the fold. When he needs fire and brimstone, he'll turn to Scalia. When he needs radicalism, he'll turn to Thomas.
10.3.2005 6:04pm
Kevin L. Connors (mail) (www):
Further, he is wrong in the general sense, as this Administration's policy on Iraq reflects a visionary, long-term, strategy vis-a-vis the Islamic world.
10.3.2005 6:26pm
Silicon Valley Jim:
I believe and hope that Roberts will use his obvious strong personal charm to work behind the scenes to build coalitions to obtain decisions that he desires. As much as I admire Justice Scalia, I'm reasonably sure that he doesn't do this.

I don't want to attribute thoughts to Professor Zywicki, but I wonder whether he may be assuming that because Chief Justice Roberts (boy, I liked typing that!) is smooth and charming, he will not prove to be as much of an intellectual leader as Scalia has been.
10.3.2005 6:38pm