WSJ: In Re Judge Roberts: Question Of 'Originalism' Looms Large

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History Lesson

In Re Judge Roberts: Question Of 'Originalism' Looms Large

His Record Shows Affinity To Scalia's Strict Doctrine But Also More Flexibility

Law-and-Order Conservative

By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
July 21, 2005; Page A1

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Unlike Justice Scalia -- and some of the other candidates the White House considered as replacements for Justice Sandra Day O'Connor -- Judge Roberts is not a leader of the movement known as originalism. He has held influential posts in the Reagan and George H.W. Bush administrations where he helped craft government legal arguments on a slew of issues, including a brief that contended that Roe should be overturned.

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Judge Roberts has spent much of his professional life working around advocates of originalism, and he is skilled at deploying arguments invoking the intent of the Constitution's framers. As principal deputy solicitor general under the first President Bush, he helped write a brief defending prayer at public-school graduations. "We looked at some of the ceremonial invocations that went back as far as George Washington," said John McGinnis, a Justice Department colleague of Judge Roberts who is now a law professor at Northwestern University. "We tried to give some of the original understanding life." Justice Scalia made a similar argument in a recent case defending public displays of the Ten Commandments. But all savvy attorneys and judges rely to some degree on original intent when they think it supports their position, and there is evidence in his legal work that Judge Roberts might turn out to be a more practical conservative in the mold of Chief Justice William Rehnquist, for whom he clerked.

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Under the living-Constitution banner, the Supreme Court has in recent decades concluded that Americans have "privacy rights," even though the document doesn't explicitly say so. The court derived from those rights the Roe decision on abortion, as well as other rulings ending government restrictions on contraception and, more recently, homosexual sodomy. The Warren Court and its followers used evolving interpretations to limit libel suits by public figures and curb execution of juveniles and the mentally retarded. Those decisions triggered a backlash among conservatives. Four decades ago, Richard Nixon gave voice to their frustration, pledging to remake the high court with "strict constructionists." His Republican successors echoed that vow, sometimes succeeding in placing justices who have loyally followed that rule -- such as Justices Scalia and Thomas -- but sometimes failing, as with Mr. Reagan's appointment of Justice O'Connor or the first President Bush's choice of David Souter. Some conservatives have had great hope that the younger Mr. Bush would amplify the voice of originalism on the Supreme Court. For that goal, Judge Roberts is the perfect pick -- according to Edwin Meese III... But Shannen Coffin, a lawyer who worked with Judge Roberts in the Justice Department of the elder Mr. Bush's administration, cautions that "originalism has many faces." While he expects that Judge Roberts "would look to the meaning of the text of the Constitution first," he couldn't predict how closely the nominee would resemble Justices Scalia or Thomas.

Prof. McGinnis says that much of Judge Roberts's approach can be understood as "generational" as well as philosophical. In recent years, "there's been a lot of interest on all sides" of legal scholarship -- liberal and conservative alike -- in putting "the text under its original understanding at the center of constitutional law." Originalism's most determined adherents insist that it can be used to reach both liberal and conservative ends. Justice Scalia likes to note in speeches that he has found laws banning flag-burning unconstitutional, much as he disapproved personally of the conduct. Justice Thomas argued in an opinion just this past term that the First Amendment might not prevent states from establishing their own official religions.

Some observers say that rather than being a true originalist, Judge Roberts more resembles a traditional law-and-order conservative -- indeed, that he comes across much like Chief Justice Rehnquist, for whom Judge Roberts clerked in 1980-1981.

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Judge Roberts took pains to separate himself from a rigid approach and suggested that all judges were originalists to some extent... Prof. Whittington notes that often there are different ways to reach the same result. In opinions conservatives have applauded limiting congressional power under the Constitution's Commerce Clause, Chief Justice Rehnquist has often cited prior Supreme Court precedents to buttress his conclusion. "By contrast, Thomas is very happy in the Commerce Clause cases to jump directly to original intent," Prof. Whittington says.

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