John G. Roberts enjoys a staunchly conservative record and impeccable legal credentials. Add his apparently mild manner, his many friends in high places on both sides of the aisle, and his scant public paper trail and it is likely he will win confirmation easily.
The real question is how he will interpret the Constitution once he is Justice Roberts.
While he denies adhering to any particular philosophy, we know President Bush pledged to nominate a justice who will follow “strict construction.” That signals “conservative,” but it doesn’t tell us what type of conservative Roberts would be.
“Strict construction” could mean taking the Constitution’s words literally, but even conservatives blatantly disregard some of its text. It could mean adhering to the original intent of the framers, but even historians disagree about what that is. It could mean following precedent, but we all agree that grave errors such as separate-but-equal must be corrected. It could mean deferring to the wishes of the states or the choices of the legislatures, but no justice consistently does either.
It could mean preventing government from interfering with the private market, but most justices favor robust regulation in some arenas. It could mean taking seriously the individual liberties expressly protected in the Constitution, but every justice favors some rights over others. Worse yet, rarely can a justice be faithful to all of these meanings at once.
Last month’s controversial eminent domain decision illustrates the real pickle. It forced conservatives to choose among their competing commitments. The Supreme Court decided that New London, Conn., can condemn private homes in an area deemed economically “distressed” so a developer can replace them with an upscale urban village adjacent to a spiffy new Pfizer facility. The Connecticut legislature authorized local governments to take property for economic redevelopment, and the state’s highest court upheld the takings.
But does the Constitution allow such a taking? The Fifth Amendment states: “Nor shall private property be taken for public use, without just compensation.” Is economic redevelopment a “public use” within the meaning of the Fifth Amendment?
It’s not all that clear. Private developers and state and local governments obviously thought the answer was “yes.” The homeowners disagreed. Did strict construction provide an obvious answer? Apparently not.
The moderates in the court’s majority acknowledged the logic and pedigree of both arguments. Then they determined how to interpret the meaning of “public use” within the particular facts and context of the case. They considered their prior decisions. They emphasized “great respect” owed to state legislatures and state courts in determining local needs and warned that courts should not second-guess legislatures. They ultimately deferred to the local government.
Sounds like classic reasoning by conservatives who believe judges should not legislate. Instead, the court’s conservative core filed a fuming dissent. O’Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, defended the homeowners on the grounds of the importance of the individual constitutional right at stake, the need to draw some line on government power, the undisputed fact that these individual homeowners were not causing any social harm, and the need to examine the effects of the action even if the government’s intent was benign.
In the end, the conservatives accused the majority of abdicating its judicial responsibility to enforce a constitutional provision specifically intended to curtail state action. What made them abandon states’ rights and judicial restraint? It turns out they were more committed to individual property rights than to federalism and separation of powers. And vice versa in other cases when liberals enforce equality and liberty protections, conservatives counter with states’ rights and judicial restraint.
What does this mean for John Roberts? For now, he can hide behind the meaningless banner of strict construction being waved by the White House. But don’t be fooled by this rhetoric. Once he is Justice Roberts, he will be forced to choose among competing commitments. Only then will we know which kind of conservative he will be.
Professor Julie Nice teaches constitutional law at University of Denver Sturm College of Law.
