Federalist Paper Trail
The National Archives handed over the key to a vault containing approximately 14,000 pages of John Roberts’ legal files. Roberts’ supporters and detractors finally have some fresh material to sink their teeth into. In the spirit of debate, I welcome the ensuing feeding frenzy.
It’s no surprise that the recently released documents betray Roberts’ federalist tendencies. As a general principle, he favors judicial restraint and deference to states’ rights. A typically conservative position, Roberts’ stance on limiting the reach of the Supreme Court has serious implications for civil rights.
This is troubling. By Supreme Court standards, Roberts is a young man. His appointment to the Court would influence decisions on decades worth of cases dealing with issues no one can foresee. The future is uncertain, but one need not look far into the past for examples of the Supreme Court defending rights denied by states. I wonder how Roberts and a court of likeminded judges would have interpreted Brown v. Board of Education of Topeka. Would they say that Kansas has a right to define "equality" in its own terms, while maintaining a segregated school system? Is that a state’s right?
Is it unfair to hold Roberts’ preference for judicial restraint under the politically-charged light of one of the most important civil rights victories in this country’s history? I don’t think so, but how about a less epic case? Just a few weeks ago, the Court ruled in McCreary County v. ACLU that a Kentucky county could not hang copies of the Ten Commandments on courtroom walls. Based on what we’ve seen, Roberts would likely maintain that the Court has no business stopping a state from filling its public institutions with all manner of religious (let’s be realistic, Christian) symbols. If you don’t know where I stand on the state/religion issue, see this related post.
Led by the likes of Bill Frist and the Justice Sunday mob, conservatives have adopted the term "judicial activism" to describe what they see as "liberal" judges using their rulings to usurp state and federal legislatures’ power to make law. But Constitutional rights don’t stop at state borders, and they shouldn’t buckle under the will of capricious masses. If conservatives’ idea of judicial restraint is to stand by while legislators and their minions bend the Constitution any way they please, I’ll take an activist, thank you very much.
--Matthew McCoy
It’s no surprise that the recently released documents betray Roberts’ federalist tendencies. As a general principle, he favors judicial restraint and deference to states’ rights. A typically conservative position, Roberts’ stance on limiting the reach of the Supreme Court has serious implications for civil rights.
He defended, for instance, the constitutionality of proposed legislation to restrict the ability of federal courts to order busing to desegregate schools.
On other civil rights issues, he encouraged a cautious approach by courts and federal agencies in enforcing laws against discrimination.
Judge Roberts, now on the federal court of appeals for the District of Columbia Circuit, also argued that Congress had the constitutional power "to divest the lower federal courts of jurisdiction over school prayer cases."
In another memorandum, he maintained that the Supreme Court, to which he is now nominated, overreached when it denied states the authority to impose residency requirements for welfare recipients.
This is troubling. By Supreme Court standards, Roberts is a young man. His appointment to the Court would influence decisions on decades worth of cases dealing with issues no one can foresee. The future is uncertain, but one need not look far into the past for examples of the Supreme Court defending rights denied by states. I wonder how Roberts and a court of likeminded judges would have interpreted Brown v. Board of Education of Topeka. Would they say that Kansas has a right to define "equality" in its own terms, while maintaining a segregated school system? Is that a state’s right?
Is it unfair to hold Roberts’ preference for judicial restraint under the politically-charged light of one of the most important civil rights victories in this country’s history? I don’t think so, but how about a less epic case? Just a few weeks ago, the Court ruled in McCreary County v. ACLU that a Kentucky county could not hang copies of the Ten Commandments on courtroom walls. Based on what we’ve seen, Roberts would likely maintain that the Court has no business stopping a state from filling its public institutions with all manner of religious (let’s be realistic, Christian) symbols. If you don’t know where I stand on the state/religion issue, see this related post.
Led by the likes of Bill Frist and the Justice Sunday mob, conservatives have adopted the term "judicial activism" to describe what they see as "liberal" judges using their rulings to usurp state and federal legislatures’ power to make law. But Constitutional rights don’t stop at state borders, and they shouldn’t buckle under the will of capricious masses. If conservatives’ idea of judicial restraint is to stand by while legislators and their minions bend the Constitution any way they please, I’ll take an activist, thank you very much.
--Matthew McCoy
posted by Matthew Harwood at 1:10 PM
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