Importance of precedent emphasized by Roberts

Supreme Court nominee offers glimpse of philosophy in Senate questionnaire

Calls criticism of judicial activism `well-founded'

August 03, 2005|By Gwyneth K. Shaw | Gwyneth K. Shaw,SUN NATIONAL STAFF

WASHINGTON - Amid dozens of pages of biographical information, financial details and legal accomplishments, Judge John G. Roberts Jr. offered a brief glimpse of his judicial philosophy to the Senate committee that will consider whether to elevate him to the U.S. Supreme Court.

In his responses to a questionnaire from the Senate Judiciary Committee, Roberts stressed the importance of applying precedent in making decisions. That comment could help gauge his views on cases, including challenges to Roe v. Wade, the landmark abortion decision.

"Precedent plays an important role in promoting the stability of the legal system, and a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath," Roberts wrote.

The committee, which will begin hearings on Roberts' nomination early next month, made the questionnaire of more than 80 pages available last night.

Roberts' comments came in response to a request for his views about so-called "judicial activism," defined by people on both ends of the political spectrum as the occasion when judges decide a case based on a desired outcome rather than a strict interpretation of the law.

A federal appellate judge since 2003, Roberts wrote that it is difficult to comment on the concepts of judicial activism or judicial restraint in the abstract, without the fact and precedents of a particular case.

But, he added, "To the extent the term `judicial activism' is used to describe unjustified intrusions into the realm of policy making, the criticism is well-founded."

While Roberts notes that it is not the role of the judiciary to make the law, or to execute it, he quotes Chief Justice John Marshall in emphasizing that it is the role of the judicial branch to decide what the law is. When that checks either the legislative or executive branches, Roberts wrote, it is not "activism" but rather a fulfillment of that duty.

`Modesty and humility'

He also expressed his opinion that the work of a judge "requires a degree of institutional and personal modesty and humility," which manifests itself in three ways.

Roberts wrote that judges must be aware that their role is limited, have a healthy respect for precedent and be fully open to the views of other judges on a particular court.

A good judge, Roberts wrote, should be a "thoughtful skeptic" throughout the process of hearing and deciding a case, considering carefully the oral arguments, reading the relevant case law and discussing the case with other judges. Writing the opinion, he wrote, is a critical part of the decision process.

"All this requires a degree of modesty and humility in the judge, an ability to recognize that preliminary perceptions may turn out to be wrong, and a willingness to change position in light of later insights," Roberts wrote.

Carl Tobias, a law professor at the University of Richmond, said his first impression of Roberts' comments was that they might be reassuring to those who have wondered about his views. At the same time, Tobias said, Roberts' answers are also fairly standard - and nothing more than what one would expect from a judge looking to be confirmed to the nation's highest court.

The judge's comments about humility and deference, Tobias said, indicate that Roberts might be inclined to accede to the will of Congress and the White House - a key issue for some lawmakers, who grumble that the current court has been too willing to overturn legislation.

The more important question, Tobias said, is how Roberts squares his comments about the importance of judicial precedent against some of the definitive cases of the modern era. For example, Tobias said, the Supreme Court has upheld the precedent set by the 1973 Roe v. Wade case, which extended to abortion the implicit right to privacy. But in the 2003 case Lawrence v. Texas, the court declared unconstitutional Texas laws that made sodomy a crime - reversing a decision handed down in 1986.

"That's what's going to be critical: What would be his view of precedent in both contexts?" Tobias asked.

Those issues are certain to come up during the Judiciary Committee hearings. Sen. Arlen Specter, the Pennsylvania Republican who chairs the committee, has said he is keenly interested in Roberts' views on how often the court should override an act of Congress.

Other lawmakers - especially Democrats on the committee - are likely to delve into Roberts' thoughts on precedent to get him to tip his hand about how he feels about Roe and similar cases.

The court, which opens its term Oct. 3, will review a New Hampshire law requiring parental notification before minors can have an abortion.

The questionnaire also offers insight into how Roberts came to be President Bush's choice for the first nominee to the court in 11 years - and into his personal life.

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