Disconnect Part 2.

I see that in the hearings Charles Fried makes a point similar to mine. August company for me, less so for him. The professors complaining about Judge Roberts continue to fall into the same trap. The notion that the courts should be a beacon for some particular substantive agenda rather than simply for scrupulous adherence to the law and the Constitution is troubling, to say the least.

Regarding one of the comments suggesting that I assume there are correct legal answers, I would say that I do not assume it, I assert it as correct and am happy to defend that assertion as to most cases. Even as to the particularly difficult cases that cannot be answered by text, history, and other relatively concrete factors, there are still numerous rules of thumb or cannons of construction that guide a judge in resolving such uncertainty. To the extent such cannons are part of the established precedents, they too help reach the "correct" answer even absent certainty from text or history.

If what people are concerned about is Judge Roberts's tendencies in areas where there are still ambiguities after faithful application of text, history, and precedent, then I think he has laid that out pretty well. He would be modest and respectful of the authority of the other branches and in that respect is likely to uphold government action in such cases, for good or ill. A narrow interpretation of constitutional limits on federal power thus should please liberals who favor expansive federal power. But that same reserve might well mean that he will not offer exansive interetations of other aspect of the Constitution as well — those restricting government power relative to individual liberties. Once again, that is the same modest view, but with different potential policy outcomes. Either way, the tendency is not based on substantive social policy considerations, but on judicial considerations and balance-of-power concerns.

It is the social policy that critics and Senators keep harping on, not the judicial policy issues that might well have an influence on the "correct" answer. As to the judicial policy questions, if you want a justice who will be respectful and deferential to the political branches you cannot also insist on a judge who will be a champion of individuals asserting their potential, yet ambiguous, constitutional rights against those very political branches. The fight over an aggressive vesus a deferential approach to enforcing the Constitution is a valuable one to have and one that Roberts has indeed weighed in on. (I might well take a different view on that issue than he does, but his approach is certainly the paradigm of judicial restraint, which seems to get lip service from both sides.) The question of whether he will impose his social policy preferences on areas of ambiguity strikes me as precisely the wrong view of the courts and I, for one, would hope that jurists would studiously resist such an approach. Judge Roberts has been definitive about that point as well.