Law profs opposed to John Roberts: show, don't tell

The letter signed by 160 law profs that urges the Senate to reject John Roberts as Chief Justice is here.  I'm interested what people think the letter is really designed to achieve.  It strikes me that the letter is a perfect example of what happens when you "tell" instead of "show."

Before going any further, for the purposes of disclosure (and/or protection from charges that I'm just defending the Bush Administration), keep in mind that I voted (reluctantly) for John Kerry and I did not vote for Senator Grassley (R-IA), so in no sense is Roberts "my guy."  I am quite impressed at his qualifications and I am not vehemently opposed to him, as the signers of the letter obviously are.

On to the letter.  I am going to cherry-pick here, partly for brevity and partly for time.

1) Standing:

The letter complains that Roberts, while in the Bush I DOJ, "defended [the] Administration's position that private citizens have limited rights to enforce environmental protections, even where Congress tries to provide them broader enforcement authority." (letter, at 3)  This appears to be a criticism of Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), in which the Court held that the "citizen-standing" provisions of the Endangered Species Act, which conferred standing on any citizen to enforce the federal government's compliance with the Act, violated Article III's "Case or Controversy" requirement, by attempting to give standing to persons who had not suffered an injury (for constitutional purposes).

While I confess that I do not find the majority opinion in Lujan to be particularly persuasive, it *is* the majority opinion (though tempered by a more plausible concurrence by Justice Kennedy).  Moreover, the question of standing is an important one, and if I am right that the letter is criticizing Roberts' support of the view that Congress cannot overcome Article III standing problems, I hardly think that makes Roberts out to be an extremist.

2) The Rust v. Sullivan brief:

I've blogged about this previously, the argument being that Roberts must be opposed to Roe v. Wade because he argued in a brief he signed that it was wrongly decided.  Key point:

A political position like the one Judge Roberts held in the Bush Administration (he was the principal Deputy Solicitor General) is somewhere in the middle, I think.  The SG can expect to come across a huge variety of federal issues, of which abortion would be one.  We might reasonably expect that Roberts was sympathetic to the general Republican principles of the Bush Administration; otherwise, he might not have sought such a high level position within the administration. (Though not necessarily, since career government attorneys stay in their jobs regardless of which party the President belongs to.)  But that is a far cry from concluding that he necessarily agreed, on a personal level, with the arguments set forth in the Rust v. Sullivan brief.  He may have, or he may not have.

I noticed today, however, that Marty Lederman has pointed out that Roberts, while in the Solicitor General's office, refused to defend the constitutionality of a federal statute giving preferences to minority-owned radio stations in order to diversify the airwaves.  This is significant, because (according to Lederman, and I have no reason to doubt him) the SG always defends the constitutionality of federal statutes as long as "reasonable" grounds exist, except in rare circumstances (none of which fit, per Lederman).  Thus, what we can conclude is that if Roberts really disagreed with an argument -- in that case, that the diversity preference was constitutional -- he would refuse to make the argument.

All that means is that Roberts may not have thought it unreasonable to argue that Roe was wrongly decided.  Even if Roberts did (and does) think that Roe was wrongly decided, that need not mean that he would vote to overturn it.  The joint opinion in Planned Parenthood v. Casey, 505 U.S. 833 (1992), suggests that at least some members of the key triumvirate of Kennedy, Souter, and O'Connor harbored questions about the correctness of Roe -- but not enough to overcome stare decisis: "[T]he reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given, combined with the force of stare decisis."

Finally, what is most striking about this argument is the absence of any analysis of constitutional theory.  The assertion is made that Roberts argued that Roe should be overruled, and that is it.  The implication is that this belief in itself should be sufficient to disqualify him from being on the Court.  The problem with that view is that the underlying theory of Roe has consistently been questioned by many (though certainly not all, and perhaps not a majority) of con law scholars, including "liberals" such as John Hart Ely. The short of it is that I have a hard time understanding the position boils down to "anyone who thinks Roe was wrongly decided must obviously be unfit for the Court."

3) Commerce Clause:

The letter opens by criticizing Robert's first opinion as a DC Circuit judge, in which he argued in dissent that (per the letter) "Congress did not have the power, under the Constitution's Commerce Clause, to protect what he called a "hapless toad" through endangered species laws.  The Commerce Clause states that Congress has the power to regulate commerce among the states.  Every 1L who takes Con Law I goes through the sequence of Commerce Clause cases, starting with Gibbons v. Ogden, going through the pre-New Deal contraction of the power, the apocryphal "switch in time that saved the nine," to the Wickard, Darby, and Jones & Laughlin trio that greatly expanded the power, to the recent Lopez and Morrison decisions.  To oversimplify, the Commerce Clause cases come down to this question: is there anything that is beyond Congress' power to regulate through the Commerce Clause?

Note that the answer "no" is not automatically ridiculous.  After all, it could simply be that the Court does not want to get involved in deciding what is or is not commerce, and will simply leave it to the political process; if Congress goes overboard in overregulating via the Commerce Clause, the voters can take action.

Still, the contrary view that there *are* limits to the Commerce Clause is not at all unreasonable.  After all, the federal government is supposed to be one of limited powers.  (See Federalist No. 84 (Hamilton).)  And an unlimited Commerce Clause is not necessarily only a boon to "liberal" causes, as the recently decided Gonzalez v. Raich demonstrates -- there, the Court upheld against a Commerce Clause challenge provisions of the federal Controlled Substances Act, which prohibits cultivation of marijuana, even if homegrown for medicinal use, despite the fact that California state law authorized such use.

What it would take to convince me that Roberts' dissent was so utterly beyond the pale would be an explanation of why the ESA' protection of the "hapless" toad was obviously within a reasonable construction of the Commerce Clause.  But the letter doesn't provide that argument.  Instead, the letter points out that no application of the ESA has been held unconstitutional.  This does not strike me as a particularly persuasive point.  Perhaps the ESA had never been extended to this situation.  After all, if the government tried to argue that the ESA protects your pet goldfish, we might expect someone to argue that such application is unconstitutional, and the response that it has never been held unconstitutional before would not be a winning point.

Overall:

The weakness of the letter, as I see it, is that it fails the basic lesson of writing: "show, don't tell."  The letter tells us that Judge Roberts does not deserve to be on the Supreme Court because the letter writer does not like Roberts' views of the right to an abortion or of the scope of the Commerce Clause or other areas of con law.  What the letter does not do is show us that Roberts' views are intellectually flawed, deceptive, or otherwise objectionable on any basis other than outcome.

Put another way, the letter makes a reasonably good case that certain outcomes preferred by the letter writer (i.e., environmental protections, labor and wage laws, antidiscrimination statutes) are in fact desirable.  But the Constitution is not solely about desirable outcomes.  For example, I would say that it is *not* a desirable outcome -- if we are looking only at outcomes -- that some factually guilty criminals who are caught redhanded with incriminating evidence walk free because of the Exclusionary Rule.  Nevertheless, the Exclusionary Rule makes sense if we are concerned about the structure of government, and in particular, with the government not violating the terms of the Constitution.  The price that we pay for adherence to the Constitution is the undesirable outcome in the individual case.  In the same way, criticism of Roberts' view of the Commerce Clause based on his dissent in the case involving the "hapless toad" should show that his interpretation of the terms of the Constitution is so misguided as to be disqualifying, not that the results that he would reach are "bad ones."

The candidate who would have appointed Justices whose substantive views would have been likely to coincide with those of the letter writer was John Kerry.  That candidate did not win the election, despite running in part on the theme that George Bush would appoint someone more or less like how Roberts has been depicted in the letter.

From the perspective of the goal of advocacy, I also have a hard time seeing how asserting by fiat that President Bush should appoint someone whose views are consistent with those of persons that Kerry would have appointed is likely to persuade the undecideds that Roberts should be kept off the Court.

Comments

[Scipio]

Your reasonable comments on this letter will, I predict, be unfairly prejudged.

I am gratified that you have made such an insightful assessment of this diatribe available.

Thank you.

[Crank]

Re: point 2, consider Roberts' opinion in Taucher v. Brown-Hruska, in which he expressly rejected the notion "that the government is forever and always 'substantially justified' in defending in court the constitutionality of an Act of Congress, whatever the statute may say, and on any ground a legal mind may conceive . . ."

[Ron Hillberg]

Toward the end of the letter the following statement is made, "And because the position gave him the opportunity to express his legal views on the most important issues facing the nation", This statement fails to acknowledge that Judge Roberts duty at the time was not to reflect his personal view, but those of the President and administration he was representing. I was a fist year student of Richard Abel in his initial year at UCLA,his view of the law as primarily an instrument of social justice were thought to be way out of the mainstream by generally liberal fellow student I hung around with.

[Elliot]

Hey professor - glad to see your analysis. Actually, I'm really happy because I was using your essay to explain to my new girlfriend the commerce clause jurisprudence. Hope all is well.

Elliot

[Brian]

Professor,

This is a terrific post. Perhaps your best ever. Very fair and honest, which I was I read this blog all the time.

Hope your fantasy football team gets off to a good start.

[Brandon]

Very insightful view of this wide-ranging issue. I had one of the signatory professors for a class during law school, so I think I understand the pool involved here. They are very well-educated, and some are educational giants in the field of Constitutional Law (For example, Chemerinsky wrote my textbook for Con Law.) I might be more willing to buy their arguments had they thought about the issues you raise here.