Jeffrey Rosen has the the premium space at the NYT Magazine this week, and he has some advice for Democrats and Republicans who will question Judge Roberts:
But in the case of Supreme Court nominees, looking backward may not be the most reliable way to predict the future. During William Rehnquist’s confirmation hearings, first as a nominee for associate justice in 1971 and then for chief justice in 1986, the discussion focused heavily on a memo he wrote as a law clerk that seemed to question the soundness of Brown v. Board of Education. By expending so much of their energy on the issue of segregation, the senators asked little, in the end, about the issue that would come to define the Rehnquist court — the relationship between the federal and state governments.
To judge from comments in the press from Senate Judiciary Committee members, the same sort of myopia may characterize the Roberts hearings. That would represent a missed opportunity: in the next 10 or 15 years, as technology and science continue to advance and America’s demographic profile continues to change, the Supreme Court will, in all likelihood, be asked to decide a fascinating array of divisive issues that are now only dimly on the horizon…
As Congress and the states pass legislation to address a host of futuristic issues, from the genetic enhancement of children to the use of brain scanning to identify criminal suspects, the laws will inevitably be challenged in court, raising novel and surprising questions about how to interpret our constitutional rights to privacy, equality and free expression. Rather than focusing on Roberts’s past, the senators questioning him might get a better sense of his future on the Supreme Court by imagining the issues of the next generation.
He has a point, and the entire article is well worth a read.
Zifnab
Many of these ‘future issues’ are still rooted in civil liberties of the past. A right to privacy does not change with the invention of the internet, nor does a right to bare arms somehow rewrite itself with the invention of the tazer. Asking Roberts how he’d rule on a question of geneticly engineering one’s child is more innane than asking him how he’d handle a future Roe v. Wade. In the latter you can point to Roberts’ record and ask, “Do you still support these beliefs,” and he can say, “I’d have to see the case on my desk before I could rule on it.” In the former he’d just brush it off as a rule with no precedent that couldn’t even begin to be contemplated without seeing how the actual case manifests.
Now if we just had the technology to brain scan Roberts for the answers we would truly be in a futuristic era.
Otto Man
I think a lot of the past and future issues overlap in one key regard — they’ll both be centered on the right to privacy. It’s what undergirds Roe and Griswold, but it’s also what will determine the outcome of civil libertarian issues emerging from the war on terror and technological advances. It’s not simply either/or.
jobiuspublius
“I’d have to see the case on my desk before I could rule on it.”
Yes, Judge Roberts, but, wouldn’t you have to see the defendant first? You know, just in case he has a job for you.
My advice is Abe Fortas, Judge Posner, etc., i.e., the past.
Jack Roy
Rosen’s argument is specious. Commerce Clause jurisprudence had been well settled until the Rehnquist Court curtly unsettled it, but the tenor and direction of that radical step could hardly be predicted. (Unless the Judiciary Committee in 1972 could be expected to predict the election of Reagan and the subsequent appointments of O’Connor, Scalia, Kennedy and Thomas.)
What could be predicted was the character of Judge Rehnquist and whether he would be respectful of stare decisis. The mere fact that as a clerk he authored an embarassingly pro-segregation brief that argued for a result contrary to that reached unanimously by the Court was, it turns out, a pretty good indication of how seriously Rehnquist took the judicial role when it conflicted with his ideological concerns. (How hard a moral question is Brown v. Board, anyway?) And in retrospect, it should have been listened to.
KC
Just to mention it again, there’s a great article in Harper’s on strict constructionism and how conservative courts continue to be neither strict nor constructionist on many many issues.
Geek, Esq.
The main thrust against him is going to be on the privacy issue, which very much concerns the coming decades of jurisprudence.
Unfortunately, Roberts has a pre-1965 view of privacy.
jobiuspublius
Abe Fortas