Boring news, law and politics stuff
I was just reading some of the rundown on Roberts’ confirmation hearings. Most of it is pretty worthless because he’s being guarded about what his “views” are. I frankly don’t have much of a problem with this. I don’t consider it a dodge. The point of the adversarial system in all courts, especially the Supreme Court, is that the advocates are supposed to push as hard as they can and the judges are supposed to deal with the merits of that particular case. If judges starts saying, “Well, when it comes to medicinal marijuana, I believe…” then they could get caught up in that view rather than dealing with the arguments before them in the case. Scalia recused himself from a case not long ago because he had spoken about the merits of it before it had been argued, and that is absolutely how he should have handled the situation. Admittedly, talking about hypotheticals is different, but it’s still a gray area, and you’ve got the whole “appearance of impropriety” thing, so there’s nothing wrong with him not saying what he’s not saying. Besides, even if he did talk about what he believes, a belief is not really going to be a good reason for a "No" unless it's so extreme as, say, claiming the Titles of Nobility Amendment has been ratified and that all lawyers have lost their U.S. citizenship (that's actually a thing some nutjobs believe).
That being said, I’ve picked up a few tidbits. Mind you, I’ve been reading news stories about the hearings, not the transcripts themselves, so not only may the information simply be inaccurate (one story was telling me that stare decisis should have the first word pronounced “stair-ee” which is actually encouraging even though it is wrong because they must have consulted a lawyer; I know this because only a lawyer would pronounce Latin that badly), but they also may not know how important the details of what they leave out may be.
I was rather bothered by his comparison of judges to referees and his statement that no one goes to a sporting event to see the referees. The referee comparison is one often made, but most commonly by people who don’t know a lot about the common law system. The fact that someone who is going to be Chief Justice said it is unsettling to say the least. First of all, he’s essentially saying that while we have three branches of government, one of them doesn’t matter much. More importantly, though, there’s the fact that our system is supposed to be a common law system. I know a lot of people today like to complain loudly about judge-made law, but in a common law system, judges are supposed to make some law. This is not to say that judges can do whatever they like, rewrite statutes and such, but the basic idea of a common law system is that when a new law or rule is made (either by statute or by precedent), we can’t expect the people making it to be able to foresee every possible twist and turn the application of that law might take, so when a new conflict in that law arises, a judge is supposed to use basic principles and the facts and arguments being presented by the advocates to craft how the law should be handling this new situation. It is indeed a limited role; judges aren’t supposed to revisit a law that’s clear just because they doesn’t like a policy, but it’s a far cry from simply looking to see whether a football player was holding or a tennis ball was just over the line.
His discussion of precedent was interesting. He was pressed specifically about Roe and Casey (when discussing abortion, I never just talk about Roe v. Wade because the specifics of that rule were completely rewritten in Planned Parenthood v. Casey. 505 US 833 [1992]). He talked about it as being entitled to the respect of precedent and the rules of stare decisis. At another point, though, when talking about his referee notions, he said that precedent applied by judges who have also respected judicial principles is settled law. Everyone see what he did there? He left himself an out where he can say, “Well, the precedent in this case is clear, but it was written by a judicial activist, so screw it.” I would be thrilled if someone actually used the term “screw it” in an opinion. Anyway, the way he talks about Roe and Casey, I don’t think he’s planning to do that, but it’s interesting to know that he could.
What specifically prompted me to write, though, is something I saw in a news account today. AP was doing a bulleted rundown of what was said yesterday, and one of the items was, “First Amendment: Roberts said he's not particularly familiar with First Amendment cases, but that the First Amendment serves the purpose of allowing people to obtain information and make judgments about the operation of the government.” This fairly well freaked me out. Now, major qualification here, this was a tremendously abbreviated listing, and there’s no guarantee that the writer understood anything about what is and is not important to say in terms of a judge’s thoughts on the First Amendment. Nonetheless, I’m concerned that maybe he did say exactly what the rundown says he said (hee-hee, fun use of forms of “to say”). Yes, the importance of free speech to a democracy has to do with communication of ideas for making political decisions, but the importance of free speech to a free society is much broader than that. Again and again, all three branches of government and people throughout this country have recognized that the First Amendment applies to much more than just political speech. Literature, art, and even commercial speech all have First Amendment protections, as does political speech that is demonstrative in nature rather than contributing to debate (e.g. burning a flag). Yes, he’s going to get a schooling from briefs any time a First Amendment case comes before him, but the problem is if he is going into a case with the wrong idea of what purpose the First Amendment serves, he could easily miss the salient details of an argument if he only has an advocate’s crash course.