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Bottoms Up

Incremental change on the Court.

Moments after President Bush announced the nomination of John Roberts to the Supreme Court, liberal interest groups were attacking Roberts as a conservative ideologue. "In reality John Roberts may be a hard-nosed extremist with a soft conservative facade," wrote the Leadership Conference on Civil Rights. "In short, the President may have nominated a stealth candidate—a Justice [Antonin] Scalia or [Clarence] Thomas in [Sandra Day] O'Connor's robes."

The question of Roberts's judicial philosophy—is he a conservative ideologue with a transformative agenda or a conservative incrementalist with a judicious temperament?—should indeed be the central question for senators to explore in Roberts's confirmation hearings. The difference between an agenda- driven conservative ideologue and a conservative incrementalist is notoriously difficult to define. But Dean John Jeffries of the University of Virginia School of Law provides a tool for identifying the difference by distinguishing between "top-down" and "bottom-up" judges. Top-down judges start with well- developed ideological commitments and apply them to the merits of each case. Bottom-up judges are more engaged by the facts of each case and are willing to follow the relevant legal precedents in whatever direction they happen to lead. Scalia, Thomas, and the liberal activist William O. Douglas are examples of top- down judges; Lewis Powell, Sandra Day O'Connor, and the conservative incrementalist John Marshall Harlan are bottom-up judges. "Top-downs say bottom- ups are unprincipled, and bottom-ups say top-downs are rigid and closed-minded, and both are probably right," says Jeffries.

Although there are important differences between them, Scalia and Thomas are top-down judges who believe that the Constitution should be interpreted in light of its original understanding and are willing (Thomas more than Scalia) to overturn decades of precedents that clash with their vision. Roberts, by contrast, has never openly embraced originalism as the touchstone of constitutional fidelity. He has been guided at every stage of his career by an effort to apply existing precedents rather than to transform them. So there are at least preliminary reasons to hope and expect that he may be a bottom-up, conservative incrementalist.

AS A SUPREME COURT justice, of course, Roberts would be entirely free to overturn precedents with which he disagrees. The Senate should explore in detail his views about stare decisis, the legal doctrine that says "let the decision stand." Since his judicial record is sparse, senators will have to look for clues elsewhere. Happily, Roberts's writings, from his days as a college student through law school, and later as an appellate advocate and judge, suggest an aversion to grand theorizing that might lead him to take an incremental, rather than a radical, approach to constitutional change.

Roberts's dislike for broad, top-down theories is evident in his earliest writings. At Harvard College, he wrote his summa cum laude undergraduate thesis on the relationship between ideology and political change. In it, he demonstrated a Burkean interest in the way political movements evolve over time, rather than conforming to rigid ideologies imposed from above.

At Harvard Law School, Roberts wrote a student note on the Takings Clause, in which he rejected a rigidly literal interpretation of the Fifth Amendment's guarantee that private property shall not be taken for public use without just compensation. "The very phrase 'just compensation' suggests that the language of the clause must be informed by changing norms of justice," Roberts wrote in a passage that should gladden liberal hearts. Rejecting as too subjective and vague a series of tests that courts had applied over the years, Roberts endorsed a "constrained utility model" for identifying unconstitutional takings. Building on the work of the great liberal constitutionalist Frank Michaelman, Roberts said that people made "insecure" by regulation should be compensated accordingly. More significant than the details of Roberts's youthful effort is the fact that he was not drawn to the rigidly libertarian, historically based vision of the Takings Clause that Thomas has embraced. Nothing in Roberts's note suggested a desire to resurrect what some libertarian activists call the Constitution in Exile—limitations on federal power that have been dormant since the New Deal.

In another student comment, Roberts rejected a literal interpretation of the Contracts Clause, which provides that "No state shall ... pass any ... law impairing the obligation of contracts." As in his earlier article, Roberts criticized Justice William Brennan's textualist approach, arguing that "constitutional protections ... should not depend merely on a strict construction that may allow 'technicalities of form to dictate consequences of substance.'" Although liberal interest groups have attacked Roberts's youthful writings as a sign of his willingness to ignore the text of the Constitution in an effort to side with corporations and wealthy property owners, these writings are more illuminating as evidence of the fact that he has never been drawn, from his earliest days, to top-down ideologies.

As a Supreme Court advocate, Roberts's most notable quality was his willingness to represent both sides of the political spectrum, unlike more ideologically driven advocates like Ted Olson, the former solicitor general. In addition to arguing on behalf of environmentalists, he was retained by primarily Democratic state attorneys general to represent their position in the Microsoft antitrust case. For Roberts, the willingness to argue any side of a legal question is a testament to his belief in the power of reason. Rather than seeing himself as a partisan, he prides himself on being a neutral lawyer, willing to use his professional talents to apply a given body of law, regardless of his own political views.

Like the best lawyers and judges, Roberts is just as engaged by technical cases involving Federal Energy Regulatory Commission regulations as he is by the most visible constitutional issues. He is clearly moved by the idea of law as a professional and constraining force. There are, he believes, good legal arguments and bad legal arguments, and the best test of an idea is its power to persuade judges of very different ideological dispositions to work toward the right answer. In an interview in 2002, he told me: "If I were inclined to do something that I would find politically satisfying and that I didn't feel I could adequately defend in an opinion, it would embarrass me to put that out in front" of a judge. Roberts's faith in the power of legal argument is characteristic of a bottom-up, rather than a top-down, judge.

Roberts's own judicial models appear to be bottom-up judges. He admires Robert Jackson, FDR's attorney general, who distinguished himself on the Court as a beautiful stylist and passionate defender of deference to legislatures. And one of his judicial heroes is Judge Henry Friendly, for whom he clerked. Friendly was the model of a cautious conservative incrementalist rather than a crusading ideologue, a believer in procedural barriers to litigation who suspected activists of all stripes seeking to use the courts as instruments of social change.

ONE WAY OF exploring Roberts's vision of the force of legal precedents might be to focus on his views about Congress's power to regulate the economy and other issues associated with the libertarian movement to resurrect the Constitution in Exile. As an appellate judge, Roberts's record on these questions is hard to discern. In one case, he took a traditionally generous view of Congress's power to condition the receipt of federal funds on a state agency's willingness to waive its immunity from discrimination lawsuits. But, in another case, he questioned whether an application of the Endangered Species Act was constitutional under Congress's power to regulate interstate commerce. The second position was more radical than the first under existing law, and both point in very different directions.

In interviews, Roberts has suggested that he believes the Commerce Clause imposes at least some limits on congressional power—a position that is now conventional wisdom among conservatives. In a 1999 interview on NPR, Roberts said of the recent Supreme Court decisions restricting the scope of federal power: "I think the three decisions taken as a group are a big deal. It's a healthy reminder that we're a country that was formed by states and that we still live under a federal system. It's the United States of America. And what these cases say is, just because Congress has the power to tell individuals and companies that this is what you're going to do, and if you don't do it, people can sue you, that doesn't mean they can treat the states the same way; that the states as co-equal sovereigns have their own sovereign powers, and that includes, as everyone at the time of the Constitutional Convention understood, sovereign immunity."

Nevertheless, in other interviews, Roberts has suggested that, although he thinks the Court can legitimately strike down an occasional federal law as exceeding Congress's commerce powers, he has no interest in joining the Constitution in Exile movement in a sustained assault on the regulatory state. In our interview, he left me with the impression that he thought it might be a good thing for the Court, at least once in 30 years, to strike down a federal law in a way that forced Congress to focus more closely on the reasons for its regulations, but that much more frequent invalidations would be inappropriate.

IDENTIFYING ROBERTS’S VISION of stare decisis will be a difficult task for Senate Democrats. It's likely that he hasn't yet had the opportunity, as an appellate lawyer and lower-court judge, to think hard about the question: In both roles, he was forced to apply Supreme Court precedents, whether he liked them or not. But focusing on Roberts's views about the force of precedent is a far more effective line of inquiry for Democrats than trying to dredge up his private memos as a government lawyer in an effort to discern his political views. Everything we know about judicial confirmations tells us that justices reveal themselves most candidly when they are asked to discuss their judicial philosophy rather than confronted with crude yes or no questions about whether they would uphold Roe v. Wade or some other specific ruling. In his confirmation hearing, Justice David Souter talked openly of his admiration for Justice John Marshall Harlan II, the great conservative traditionalist who revered precedent above all and unapologetically embraced the right to privacy. Anthony Kennedy, for his part, revealed himself as an expansive libertarian with a broad suspicion of state power.

Given Roberts's dazzling talents—his intelligence, judgment, devotion to legal craft, and palpable belief in the power of reasoned argument to constrain judges in meaningful ways—it seems quite possible that his vision of the force of precedent might evolve and grow during decades on the Court. I don't mean "evolve" in the sense that liberals hope and conservatives fear—that Roberts will become less conservative and more liberal. I mean, instead, that the application of his determined intelligence to the hardest and most elusive questions of constitutional law will lead Roberts to develop a vision of constitutional stability that is uniquely his own. What precisely his vision will be is probably not evident at the moment, even to Roberts himself. But, by focusing on Roberts's judicial philosophy, rather than his views about the controversies of the moment, the Senate can do much to illuminate this crucial question in the confirmation hearings ahead.

This article originally ran in the August 1, 2005 issue of the magazine.