Will Chief Justice Roberts Oversee an Activist Court?
September 25, 2007 (NEW YORK) -- Just two years into Chief Justice John Roberts’ lifetime term, guest panelists at the Law School debated whether his influence on the Supreme Court will be that of a restrained judicial conservative or conservative judicial activist. At a September 24 program moderated by Betts Professor of Law Peter Strauss, Emily Bazelon, senior editor of Slate.com, debated M. Edward Whelan III, president of the Ethics and Public Policy Center, Washington, D.C. The debate was co-sponsored by the American Constitution Society and the Federalist Society.
“Chief Justice Roberts will in the end become an activist judge, moving law in his direction,” said Bazelon. In his first two years as chief justice, Roberts’ pacing, timing and refusal to overturn previous Supreme Court decisions may give the impression that he believes in judicial restraint, but he and his conservative colleagues believe they have plenty of time ahead to shape the Court, she added.
“This causes real problems for lower courts unable to determine a clear direction from the Court’s decisions,” she said.
Whalen, who clerked for Associate Justice Antonin Scalia and served as general counsel to the Senate Fiduciary Committee, said he has “high praise for Roberts’ performance over the past two years. The judiciary has the important role of enforcing limits set forth in the Constitution,” he said. “Judicial conservatives adopt principles to guard against policy preferences in deciding the law. Roberts has a record of judicial restraint.”
Whalen added that “judicial activism” is a pejorative term, reflecting judges who don’t respect the boundaries set by the separation of powers [in each branch of government.] “The harm to the government is the same, regardless of a judge’s motivation,” he said.
Bazelon, a graduate of Yale Law School, characterized the docket of cases before the Supreme Court this year as one that lacks litmus-test cases on big issues such as abortion or religious freedom, although issues such as sentencing guidelines for child rape and drug possession, and the Guantanamo case on civil rights of detainees, will be considered. The way this conservative Court decides these issues could make it “look liberal,” she said.
Both Bazelon and Whalen agreed that Associate Justice Anthony Kennedy has a pivotal role on the Supreme Court as the swing voter to decide cases.