The Roberts Court?
From: http://www.truthout.org/docs_2005/072505I.shtml
Monday 25 July 2005
Consider this: John Roberts's nomination for Associate Justice of the Supreme Court is confirmed by the Senate. Chief
Justice William Rehnquist steps down. Then, Bush elevates Roberts to Chief.
This scenario would avoid the nasty fight that would surely ensue if Bush elevated his model Supreme Court Justice
Antonin Scalia - or chose another rabid right-winger - to be Chief Justice. The Democrats lined up to pose with the
smiling Roberts during his expertly choreographed visit to the Senate last week - not a word about a filibuster if
Roberts refuses to explain his record as apologist for the Reagan and Bush I administrations and the big corporations he
represented. And judging from the giddy reaction of Operation Rescue and the Family Research Council to Roberts's
nomination for Associate Justice, Bush's conservative base would be thrilled.
Rehnquist was a radical, far out of the mainstream of the rest of the Court, when Ronald Reagan made him Chief. When he
clerked for Justice Robert Jackson, Rehnquist had written a memo called, "A Random Thought on the Segregation Cases," in
which he advised Justice Jackson to affirm Plessy v. Ferguson's "separate but equal" doctrine in future segregation
cases, including Brown v. Board of Education. The memo stated, "I realize that it is an unpopular and unhumanitarian
position, for which I have been excoriated by my 'liberal' colleagues, but I think Plessy v. Ferguson was right and
should be reaffirmed." Rehnquist concluded that the Court should uphold segregation and refuse to protect "special
claims" simply "because its members individually are 'liberals' and dislike segregation." Plessy was later overturned in
Brown v. Board of Education.
A former Rehnquist law clerk, Roberts is Rehnquist Lite - but less controversial than Rehnquist was when he became
Chief. While not directly attacking Brown, Roberts, as Associate Counsel to President Reagan, argued in favor of
right-wing legislation that would have prohibited judges from ordering busing to desegregate schools. Why? Because, said
Roberts, busing "promotes segregation rather than remedying it, by precipitating white flight."
Hale fellow, well met, Roberts is smooth. Since junior high, he has assiduously groomed himself to be on the Supreme
Court. In a footnote in his 1994 law review article, Roberts wrote, "In the interest of full disclosure, the author
would like to point out that as Deputy Solicitor General for a portion of the 1992-93 term, he was involved in many of
the cases discussed below. In the interest of even fuller disclosure, he would also like to point out that his views as
a commentator on those cases do not necessarily reflect his views as an advocate for his former client, the United
States." Roberts, who knew that someday he might have to explain those views to a Senate Judiciary Committee, set out to
distance himself from them.
After Roberts's nomination last week, the Washington Post, the Los Angeles Times, USA Today and the Associated Press
identified Roberts as a member of the right-wing Federalist Society. But after the White House called the news
organizations and informed them that Roberts said he "has no recollection" of ever being a member of the Federalist
Society, they printed retractions. Lo and behold, the Washington Post reported today that John G. Roberts Jr. is listed
as a member of the steering committee of the Federalist Society in its Lawyers' Division Leadership Directory,
1997-1998.
This could blow up in Bush's face. With Watergate, it was the cover-up that became the blockbuster. The same thing
could happen with "Federalistgate" (and "Plamegate," for that matter).
But what if Roberts is confirmed? What would a Roberts Court look like? Roberts, who wrote a brief saying there is no
right to an abortion in the Constitution, would work to overturn Roe v. Wade. But even more alarming, Roberts, who spent
the lion's share of his government service in the executive branch, would extend the scope of presidential authority in
an unprecedented manner.
George W. Bush has pushed the envelope of executive power to a new level - by invading a sovereign country that posed
no threat to America, based on his illegal "pre-emptive war" doctrine; by declaring that, as Commander-in-Chief, he has
the power to suspend the Geneva Conventions; by planning to covertly influence the "democratic" Iraqi elections; by
threatening to veto any bill Congress passes that would encroach on his presidential power; by snooping through the
sites we visit on the Internet and the books we read; and by shielding Karl Rove from criminal prosecution (don't be
surprised if something untoward happens to the independent prosecutor investigating Rove).
Four days before Bush tapped him for the Supreme Court, Roberts, in Hamdan v. Rumsfeld, granted the President unchecked
authority to create kangaroo courts to try suspected terrorists, even though the Constitution gives only Congress the
right to establish courts.
In the never-ending war on terrorism, Roberts would likely defer to the President to torture, assassinate, or imprison
for life anyone the executive dubbed a "terrorist." He would likely defer to the President by upholding the noxious
provisions of the Patriot Act that threaten our civil liberties but make us no safer. And Roberts, always the company
man, would likely defer to the President whenever the executive takes a position that favors corporations at the expense
of workers and the environment.
The justice Roberts would replace, Sandra Day O'Connor, wrote in Hamdi v. Rumsfeld last year, "A state of war is not a
blank check for the President." Judging from his decision in Hamdan, Roberts might well write the executive that blank
check.
Our constitutional system is grounded in the symmetry of three co-equal branches of government, each with separate and
distinct powers. The 50-year-old Roberts would have the opportunity to shape the Court for decades. By moving the
judicial branch to bypass Congress and defer to the executive, Chief Justice John Roberts could preside over a Court
that will destroy the separation of powers as we know it.
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Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive
vice president of the National Lawyers Guild, and the US representative to the executive committee of the American
Association of Jurists.