Issue January 1, 2006

Pleasant surprise?

Oops! Did W. screw up? It took only 20 minutes of questioning from Sen. Arlen Specter to elicit from John Roberts the surprising revelation that the nominee believes that the right to privacy is firmly based in the U.S. Constitution. Both explicit and implied, the notion that a right of privacy is essential to “secure the Blessings of Liberty to ourselves and our posterity,” was unequivocally endorsed by Mr. Roberts. Take that, Justice Scalia.

Obviously, Roberts’ answer was anxiously anticipated and carefully prepared. Those on both sides of the abortion issue understand that the Roe vs. Wade decision was predicated on a constitutional right to privacy, and a justice, like Scalia, who did not believe the Constitution includes such a right, would be much more likely to vote to overturn that decision. So those who support the right of women to abortion access probably breathed a sigh of relief this week, even though Roberts’ statement doesn’t guarantee that Roe vs. Wade will remain the law of the land.

It does, however, mean that John Roberts is a nominee who believes that the country has changed, and the collective mentality of American society has evolved, since the Constitution was ratified 216 years ago. He may not be one of those people, as many feared, and as Lewis Lapham of Harper’s Magazine described, “… a man or woman miraculously preserved in the placenta of the late eighteenth century.”

Nowhere in the U.S. Constitution can be found the words “strict constructionist,” although many on the conservative end of the political spectrum like to throw the phrase around as though it had legal, if not biblical, significance. Despite the haughty tones in which it is brandished by the right, strict constructionism is a purely political term, conceived to assure conservative voters that the politician using it does not prefer the devilish “judicial activists,” who presumably don’t respect constitutional guidelines. (Unless, of course, one happens to agree with a particular “activist” decision, like the 2000 case in which the Supreme Court decided to ignore the separation of powers and overrule the Florida Supreme Court to make George W. Bush President of the United States.)

To a certain extent, this same rhetorical battle relates to the question of “judicial legislation,” a form of judicial activism in which a court makes law rather than interprets law. Roberts testified that there are some cases in which the line between interpretation and lawmaking is clear, but that in many cases the line is hard to draw. Unfortunately, in the current political environment, conservatives would have you believe that any court decision with a liberal result is judicial lawmaking, while every one with a politically conservative outcome is proper legal interpretation.

So when the Massachusetts Supreme Court decided that the state could not prohibit gays and lesbians from marrying, opponents of the decision contended that the court was making law, while those who supported the decision said the court was appropriately interpreting the Massachusetts constitution. In other words, most of the time one person’s judicial legislator is another person’s wise jurist. It’s usually a question of whose ox is being gored.

The Constitution does not even hint as to how the drafters intended it to be interpreted. It simply says, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” But Chief Justice John Marshall, in a decision from 1819, provided an unambiguous guide: “This provision is made in a Constitution designed to endure for ages to come and, consequently, to be adapted to the various crises of human affairs.”

So, even though Madison, Hamilton and Jefferson probably never thought about whether gays and lesbians should be allowed to marry, they anticipated that human crises, like our current dispute over same-sex marriage, might one day come before American judges. They knew they could not possibly determine what a society 200 years later should do about every human crisis, but they established principles of government that anticipated changes in circumstances, and thus in laws.

At first glance, John Roberts appears to be a person who does not live in the past, who understands there is no set way to decide a case, and who brings no paralyzing ideology to the Court. He seems to be the type of person who would agree with the renowned appellate justice Learned Hand, who said, “The spirit of liberty is the spirit which is not too sure that it is right.” If that initial assessment proves accurate — if John Roberts wasn’t just being a shameless suck-up in his hearing — Bush has made an uncharacteristically good appointment, and Scalia, Thomas, Jerry Falwell and Pat Robertson will have to look elsewhere for a friend on the Court. Wouldn’t that be a delicious courtroom surprise?