Column: Amicus Curiae

By Se Young Lee

U.S. Court of Appeals Judge John G. Roberts, President George W. Bush’s nominee to replace Justice Sandra Day O’Connor’s seat in the Supreme Court, could very well determine U.S. jurisprudence for decades to come if confirmed. But as the Senate hearing approaches, it remains unclear just what kind of a judge Roberts is and will be.

There is no question that Roberts has the intellect and the experience to be one of the nine justices who are at the apex of the U.S. judiciary branch. He has been called by both liberals and conservatives as one of the most brilliant legal minds in the United States today, and his distinguished career as a lawyer would certainly justify such a claim. He won 25 of the 39 cases he argued for the government as Deputy Solicitor General, from 1989 to 1993, in the Supreme Court. And on Wednesday, Justice O’Connor said Roberts is fit to take the seat in the highest court of the nation.

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However, some liberals and conservatives alike have voiced concerns about Robert’s lack of definitive judiciary record. He has only served as a judge of the Washington, D.C. Appellate Court for twenty months with few opinions or other writings to show for it.

Although Roberts’ work as a lawyer is extensive, it would be imprudent to try to gauge what he would do as a Supreme Court Justice by what he has done at a fundamentally different position. Roberts has been both praised and condemned for co-authoring a 1991 brief as Deputy Solicitor General asserting that there is nothing in the “text, structure or history of the Constitution” supporting the court’s acknowledgement of the fundamental right of abortion in Roe v. Wade.

But it must be remembered that Roberts was making the case on behalf of his client – the President of the United States. Good lawyers will make arguments that will bring the most desirable result for their clients regardless of whether the arguments reflect their personal opinions. And while it is widely acknowledged that he is politically conservative, he does not always walk the ideological line while performing his task in the court. Essentially, nobody – perhaps not even Roberts – knows what Roberts will do if he becomes a Supreme Court justice.

The senators will have an opportunity to find out just what Roberts will seek to do as a justice, and that chance must not be squandered. There are some important questions that must be raised.

In a 2003 dissent in Rancho Viejo v. Norton, a case involving the preservation of a rare species of toad in California, Roberts argued that the interstate commerce clause does not allow the federal government to legislate on actions affecting “a hapless toad” that “for reasons of its own lives its entire life in California.” As insipid as this opinion may seem, it nevertheless raises the question of what Roberts’ opinion is on the invocation of the commerce clause because many of the federal laws derive authority from it. While it is certainly true that Congress has on many occasions, as Roberts said during his 2003 confirmation hearings, failed to provide sufficient evidence to prove impact on interstate commerce, Roberts might be a believer of narrow reading of the commerce clause, similar to that of Justices Antonin Scalia and Clarence Thomas, that could negate decades’ advances made in environmental and other regulatory laws that have protected generations of Americans from harm.

Furthermore, it is important to learn what Roberts’ stance is on the right to privacy. While the judiciary branch must adhere to their constitutional responsibility as the interpreter of law, the Supreme Court must not meekly defer to the legislative or executive branch. The courts are the last defense against unreasonable, cruel or flagrantly discriminatory and abusive laws and policies – unfortunate byproducts of political polarization, demagoguery and rash knee-jerk reactions that have ruined too many Americans already. Surely the federal government must have a constitutionally substantial argument for any and every initiative or action it takes. Rule of law demands it.

Roberts appears to be a humble and even-keeled man with a sense of humor and, most importantly, a healthy understanding of the court’s role as an impartial and independent body. But more than anything else, this nation needs an open-minded justice who will rule based on legal principles and give each case a fair hearing instead of attempting to distort the laws to produce a decision that conforms to personal political ideology. Roberts should be confirmed only if he can be one of such fair-minded and astute justices who can rise above the polarizing squabble that all too often permeates in Washington and occupy his seat in the highest court of the land with dignity and humility.

Se Young Lee is a junior in communications and will be the opinions editor at the Daily Illini during the fall semester. He can be reached at [email protected]