Roberts' First Term and the Meaning of "Modest" Judging:
In today's Los Angeles Times, David Savage suggests that Chief Justice Roberts did not remain true to his modest vision of the courts in two cases last Term, Rapanos v. United States and Gonzales v. Oregon. Savage writes:
One year ago, John G. Roberts Jr., at the time President Bush's nominee to be the chief justice of the United States, told senators that he aspired to be like an umpire, enforcing the rules of the game, not making them.

"My job is to call the balls and strikes, and not to pitch or bat," he said. "It is a limited role…. Nobody ever went to a ballgame to see the umpire."

Roberts suggested that modesty, humility and stability in the law were the goals of his umpire credo. Not to make law, like the activist judges he disdained, but merely to interpret existing laws fairly, mindful of legislative intent and the requirements of the Constitution. And during much of his first year, he did just that.

But in several cases, he behaved differently, joining Justice Antonin Scalia in dissents that would have rolled back a major environmental law and undercut states' traditional authority over the practice of medicine. Neither would have qualified as a modest act.

* * *

In 1994 and again in 1997, Oregon's voters approved the Death with Dignity Act, which allowed terminally ill people to obtain a dose of lethal medication from a doctor to hasten death. Two physicians had to certify that a person's illness was incurable and that they had, at most, several months to live. * * *

. . . [W]hen Bush made Ashcroft his attorney general in 2001, Ashcroft issued an order saying that doctors in Oregon could lose their licenses to prescribe medication if they gave dying patients lethal drugs. Oregon's governor, doctors and some patients sued, and a federal judge and the U.S. Court of Appeals blocked Ashcroft's order.

The case of Gonzales vs. Oregon came before the Supreme Court in Roberts' first month as chief justice, and a 6-3 majority ruled for Oregon in January. But Roberts joined Scalia's dissent, as did Justice Clarence Thomas. The three said the use of legal drugs for ending a life was not a "legitimate medical purpose" and could be banned by the attorney general.

If Roberts' side had been in the majority, it would have voided the voice of Oregon's voters, taken away the state's traditional power to regulate the practice of medicine and upheld a single federal officer's new interpretation of a long-standing federal statute that had not been endorsed by Congress.

In the other case, Roberts supported a sharp pullback in the Clean Water Act of 1972, which makes it illegal to discharge pollutants into the "navigable waters of the United States" without a permit. Because water flows downhill, the Environmental Protection Agency since the 1970s has said it has authority over all rivers, streams, channels, marshes and wetlands that may send water — and pollutants — to major lakes, rivers and bays.

But in Rapanos vs. U.S., Roberts joined Scalia, Thomas and Samuel Alito in calling for a new, sharp limit on the EPA's authority. Federal authority, they said, only applied to permanent and "continuous flowing" bodies of water, such as rivers and their main tributaries. This would have eliminated federal protection for most streams and wetlands in the interior of the nation and nearly all those in the West and Southwest because their stream beds are dry for part of the year.

For more than three decades, these federal regulations on wetlands and streams had stood, through Republican and Democratic administrations and through GOP- and Democratic-controlled Congresses. Yet, with one extra vote, the Roberts court would have rewritten the scope of the Clean Water Act in its first term — not the act of a modest Supreme Court.
  David Savage is one of the best Supreme Court reporters in the business, but I think his criticism misunderstands Roberts' confirmation hearing testimony. Roberts did not pledge that he would reach modest results: he pledged that he would do his best to follow the law. In a statutory case, the modest judge follows what Congress says, subject to preexisting rules of interpretation; he doesn't pick a substantive result that preserves the status quo and then manipulate the law to get there.

  The difference is important, I think. Consider an extreme example: If Congress passed a law that doubles the income tax, it wouldn't be "modest" for a judge to interpret the law so that it increases the income tax only 5% instead of doubling it. Sure, 5% is a very modest tax increase compared to a 100% tax increase, but for a modest judge that's a question for Congress and not the courts.

  To be clear, I think reasonable people can disagree on whether Roberts acted consistently with that modest role in Rapanos and Gonzales. Personally, I found Kennedy's majority opinion in Gonzales more persuasive than the Scalia dissent that Roberts joined. But if the question is Roberts' consistency, the test needs to be whether Roberts was following the law to get to his result, not whether he interpreted a law so that it had only a modest impact.

  Thanks to Howard for the link.