Tuesday, September 25, 2007

John Roberts: Restrained Judicial Conservative or Conservative Judicial Activist


Today, the Columbia ACS and Federalist Society hosted a conversation between Emily Bazelon (Senior Editor of slate.com) and M. Edward Whelan III (President of the Ethics and Public Policy Center) focusing on what to expect from the Roberts Court.

Mr. Whelan opened by noting his initial uncertainty as to Chief Justice Robert's attitudes, and then declared his satisfaction with the Chief Justice thus far. Interestingly, Mr. Whelan defended the term "judicial activism," noting it is inherently apolitical, but involves the overriding of political decision-making. He also noted that judges can affect similar error through "judicial passivism" in refusing to enforce politically-created rights. Further, Mr. Whelan distinguished judicial restraint from stare decisis because judicial restraint involves deference to the political branches. Returning to Chief Justice Roberts in conclusion, Mr. Whelan expressed his approval.

Ms. Bazelon dove right into an analysis of Chief Justice Roberts emphasis on unanimity in his first term. Moving into the recently elapsed term, Justice Kennedy's role in the numerous 5-4 decisions places him, and rather than Chief Justice Roberts, as the driving mind on the Court. This leaves Chief Justice Robert's role as one of timing and pacing. Ms. Bazelon pointed to a deeper understanding of restraint, noting the Justice Scalia's frequent criticisms of his Chief for "faux judicial modesty." Robert's emphasis on "modesty" bespeaks a preference for incremental change in the Court's decisions and calls for a delicate respect for precedent. Returning to the issue of pacing and timing, Ms. Bazelon pointed out the conservatives on the Court are just younger than the liberals and thus have time on the court to be patient and can build a number of decisions to cut away at important precedents. She asserted that Chief Justice Roberts will ultimately be an activist judge because he will drive the law toward an end-state that he desires.

Professor Peter Strauss, our moderator, opened the question period with a detailed query as to the current Court's approach toward the rule of law and respect to precedents in the context of a "common law" statute. What ensued was a wide-ranging and considered discussion of a number of jurisprudential points. Student questions focused on the terminology and evolved-meaning of the term "judicial activism," and the interpersonal dynamics among the Justices on the Court.

In the midst of answering a question, Ms. Bazelon expressed her anxiety in relying upon Justice Kennedy for her hopes for the court. "Me, too," enjoined Mr. Whelan. Regardless of their position on the alleged activism of Chief Justice Roberts, both speakers agree that Justice Kennedy is the linchpin of the Court and it is that dynamic which will be the prime driver of the Court in the near future.


Columbia ACS would like to thank Emily Bazelon, Edward Whelan, and Professor Peter Strauss for joining us today and offering their important and interesting remarks.

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