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Sunstein on the future Roberts, C.J.

(Blogging's light; I spent the last two days editing a first draft of the first third of the Second Amendment documentary).

Cass Sunstein, writing in the Wall St. Journal Online, suggests (much to his own relief) that John Roberts is not a constitutional "fundamentalist," whatever that is. (His definition seems to be a judge who is conservative and willing to do something about it).

I'd suggest a more accurate differentiation would be:

1. Someone (Sandy Levinson? It was in the Supreme Ct Rev, back when I was in law school, hence 1975 or before) suggests that approaches to the constitution divide the same way that religious views did in the Reformation, namely:

a. The "Catholic" view: interpretation of the key document (bible/constitution) is best confided to a group of experts, functioning as an institution. (Thus is is the business of the courts to determine the constitution, and it is a bit presumptuous for Congress to vote against a proposition, or the President to veto it, based on constitutional concerns. Their business is finding good policy, not interpreting the Constitution). Once questions are decided, you use them to build a hierarchy of decisions, with emphasis on deciding the present issues consistently with past decisions. You rarely question past decisions, since much may have been built upon them. The document is sort of a "living" document, since later decisions are part of it. [At the same time, the decisionmaker thinks of himself/herself as "finding" meanings, just courts "find" the meaning of the common law, as if it were Holmes' brooding omnipresence in the sky].

b. The "Protestant" view. The document itself is key, and every person has an obligation to use their best judgment in finding its meaning. You may consider experts, but they inform your opinion rather than bind it. Congress and the President have independent duties not to pass or approve measures they think unconstitutional: they, like the Justices, have taken an oath to support and defend the document. Since the document, rather than the hierarchy of decisions, is key, if a prior decision seems irrational, you do not accept it. (The author of the article pointed out that the late Justice Black, the ultimate exponent of this view, was the son of a minister and always carried a copy of the constitution in his pocket, just as his father had likely carried a Bible, so that if a question arose in conversation he could pull it out, read it, and explain his opinion based upon the exact wording).
This view can further divide into textualists (Black, and the present Justice Scalia) who largely consider the text alone to govern, and broader originalists (Justice Thomas) who consider text important, but also the original understanding of it. This can be important on Commerce Clause questions. The text itself just says Congress can regulate interstate commerce, a very broad statement, while original understanding suggests a narrower purpose was intended.
From what little we know of Roberts, he seems mostly of the "Protestant" view (nevermind his actual religion; I'm RC myself in religious but "protestant" in a constitutional sense). I say "mostly" because some of his decisions reflect a fair amount of concern about upsetting the caselaw hierarchy.

2. Activist vs. nonactivist. This deals not with what a judge believes but in how much he is willing to do about it. How certain must a judge be that a measure is unconstitutional before he strikes it down? Should the striking be narrow or broad? Should the judge move powerfully, since the Constitution itself is at stake, or cautiously, since he is a non-elected official acting to overturn what is presumably the majority will and the policy decisions of branches assigned to make policy? Here, it's clear that Roberts is nonactivist.

This would indicate Roberts is a nonactivist, mostly but not entirely "protestant" constitutional thinker. The limitation to this analysis is of course that we have only his decisions as a Circuit judge, who is bound to follow Supreme Court rulings (more or less) and knows he can be reversed if he goes out of line. What a person does when they become part of the body giving the orders may differ from what they did as a subordinate carrying out the orders.

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