Goodwin Liu Was Right About John Roberts

National Review blogger Ed Whelan, who has been leading the right wing attack effort against President Obama's 9th Circuit Court of Appeals nominee Goodwin Liu (my professor at Berkeley Law), doesn't like what Professor Liu had to say about then-nominee John Roberts.

Goodwin Liu’s Cheap Attack on the Roberts Nomination

Three days after President Bush announced his nomination of John Roberts to the Supreme Court, Berkeley law professor (and new Ninth Circuit nominee) Goodwin Liu published an op-ed against Roberts’s nomination. According to Liu, “Roberts’s record is cause for concern,” and “[h]is legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.”

Whelan goes through and tries to mince Liu's words in an effort to try to undermine his nomination to the Court of Appeals. But where Whelan's post is wholly lacking is in the recognition that Liu was entirely correct in his estimation of the type of Chief Justice John Roberts would be.

Let's just look at the issue of Civil Rights, an area in which some of the most profound decisions of the Roberts era have occurred. In the case of greatest note, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court under Chief Justice Roberts in effect gutted the heart of the Brown v. Board of Education decision of a half-century earlier with a majority so razor-thin that it evaporated into a plurality in part (that is, only part of Chief Justice Roberts' opinion garnered majority support; the rest was joined only by three other Justices, with the remaining five unwilling to sign their names). Here's Jeffrey Toobin writing about the decision in The New Yorker:

In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Roberts's opinion drew an incredulous dissent from Stevens, who said that the Chief Justice's words reminded him of "Anatole France's observation" that the "majestic equality" of the law forbade "rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." For dozens of years, the Court had drawn a clear distinction between laws that kept black students out of white schools (which were forbidden) and laws that directed black and white students to study together (which were allowed); Roberts's decision sought to eliminate that distinction and, more generally, called into question whether any race-conscious actions by government were still constitutional. "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision," Stevens concluded.

What Roberts did here, as Justice John Paul Stevens suggests, was make new law in restricting the ability of the government to address Civil Rights in the class room, in doing so turning on its head the thrust of Brown.

To take a more recent example, the Roberts Court, by a similar 5 to 4 margin, fundamentally altered Civil Rights law in the area of employment in Ricci v. DeStefano, a case you may recall from the confirmation hearings of then-nominee Sonia Sotomayor. In that case, the Court made new law -- or as Chuck Todd put it, the majority "legislated from the bench" -- to hold it impermissible for the New Haven fire department to have altered its policy of promoting firefighters when faced with the potential of a successful suit alleging that the promotion policy, as applied, violated Title VII employment discrimination law.

I have not followed closely enough the Roberts' Court's decisions in the areas of the environment or abortion to speak to whether it has undertaken similar rightward shifts in the law (though I do know that the Supreme Court under Roberts overturned a seven year old precedent in the area of choice with its Gonzales v. Carhart decision). Nevertheless, at least in the area of Civil Rights law, it's hard for me to understand how one could argue that Liu was not prescient in his statement that Roberts was a "cause for concern."

[UPDATE by Jonathan]: It looks like Chief Justice Roberts has also not been a boon to the environment, either. Here are reports from The New York Times and The Daily Journal.

Death is an unavoidable eventuality. All we do throughout our life is write our obituary….think about it. This written remembrance is all we are after we’re dead.

It appears Supreme Court Judges Samuel Alito and John Roberts want to be remembered as the Judges who hate hard-working Americans and the U.S. Constitution so much that they gleefully destroyed our Founding Father’s vision of our great new nation when these Judges cast their votes removing the “cap” on corporate and union contributions to political candidates (which had been in place for 60 years). As written in the Constitution, “We the PEOPLE “elect our leaders, NOT U.S. CORPORATIONS elect our leaders!

Oh well, what can be expected when the worst President in the modern U.S. history chose this disgraceful pair. The misery of the George W. Bush Administration and the filthy President Dick Cheney CONTINUES to wreak havoc on our great nation even after their gone!

No more voting for me, it is now a waste of gas to drive to the polling stations. Mr. Alito and Mr. Roberts, I hope you both rot-in-hell for what you have done to my country.


Will Justice Roberts Legislate from the Bench??

Crossposted from Hillbilly Report.

You know, the hypocrisy of Repubicans has become quite astounding. They whine and moan about welfare but dole out hundreds of billions in Corporate Welfare. They talk about "capitalism", but fell in love with the no-bid contract. They talk about keeping us safe while incompetently allowing the worst attack ever on American soil. They rail against the Obama stimulus while they never mention the Bush banking bailout and his crashing of the economy. They rail against the inefficiency of government, government that they completely failed in running.

There's more...

Who is really qualified to sit on the Supreme Court?

(Cross-posted from Think it Through)

Having just returned from a blog-free, almost e-mail free three weeks in Umbria, I have learned that the President named Sonia Sotomayor as his choice to replace David Souter on the Supreme Court, and that the Republicans in the Senate and elsewhere are making noises about opposing her on the grounds that she is too Hispanic.

Sotomayor's critics start by admitting that she is "qualified." She has a law degree from Yale University, was appointed to the federal district court by Republican President Bush in 1991, then elevated to an appeals court judgeship by President Clinton in 1998. Her critics argue that being qualified is not enough. They question her judgment, because she would see the law through the eyes of a Puerto Rican woman from New York City. Essentially she is too Hispanic-urban-northeastern-female.

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Chief Justice John Roberts is Wrong

Adam Liptak in The Times:

For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development may be a good thing.

Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.

As late as 1972, when Chief Justice Roberts's predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.

As a consequence, Chief Justice Roberts said, "the practice of constitutional law -- how constitutional law was made -- was more fluid and wide ranging than it is today, more in the realm of political science."

Since then, Chief Justice Roberts continued, "the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?"

That move, he said, has resulted in "a more legal perspective and less of a policy perspective."

Matt Cooper writing over at his new digs, TPM DC, disagrees with Chief Justice John Roberts, suggesting that the Supreme Court would be better served with membership including a wider background including those who have held elective office. I've written at some length on the topic in the past, and hope to write some more on it in the future (including perhaps my writing requirement for law school), and have come to the same conclusion as Cooper.

Liptak notes that this is the first time in United States history that the Supreme Court is entirely made up of former federal appellate judges. It is also only the second time in 220 years that the Court is without a justice with legislative experience (the other time being the period between Hugo Black's retirement in 1971 and Sandra Day O'Connor's selection in 1981). Indeed, as of 2005, when I first wrote on this subject, more than two in five members of the Supreme Court throughout history have had experience serving in a legislature, including more than one in five who had served in Congress.

This doesn't mean that the Supreme Court should function like a super-legislature, or that it was intended to function as such. But those who have previously served in public office, more than those who have remained in the ivory tower of academia or the highest of courts, have a better sense of the practical impact their decisions can have on citizens of this country. Perhaps more importantly, they, better than those who haven't spent some times in politics, understand how to expand a divided and divisive 5 to 4 majority -- which we seem to be seeing more and more of as the narrow conservative majority on the Court appears intent to press it's advantage to overturn decades of precedent -- into a more stable 6 to 3, or even 7 to 2 majority.

So as I've argued before, and Cooper writes today, I think it's time to go back to what has worked for the past couple hundred years rather than simply follow Roberts' lead and consider not just career jurists for the bench but also those with more varying backgrounds -- including those with experience in elective office.

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