Federal Courts and Nominations

John Roberts: Restrained or not?



Chief Justice John Roberts, both the conservative and progressive panelists convened at POLITICO’s “Future of the Roberts Court” discussion agreed, has professed to be a supporter of judicial restraint since his confirmation. But they sharply disagreed over whether this has been true in practice and how this will affect his vote on same-sex marriage.


Ed Whelan, president of the right-leaning Ethics & Public Policy Center, said that if Roberts were to rule that the Constitution guarantees a right to same-sex marriage, he would be “astounded and deeply embarrassed on his behalf.”


Whelan said that many conservatives are hopeful that Roberts’ past judicially restrained decisions, like his ruling that upheld the Affordable Care Act under the Constitution’s taxation authority, portend future judicial restraint in rulings that favor conservatives.


“We hope that he will show judicial restraint across the board,” Whelan said, arguing that the court should defer to the will of democratically elected branches of government on same-sex marriage and not alter the status quo.


Many states, through ballot referendums and legislation, have enacted constitutional bans on same-sex marriage, which carried significant popular support. The Supreme Court could overturn all of these bans later this month in its Obergefell v. Hodges ruling.


The Constitutional Accountability Center’s Elizabeth Wydra disagreed sharply with Whelan, saying that though Robert said during confirmation he wants to serve simply as an umpire calling balls and strikes, a number of the chief justice’s rulings, namely those about campaign finance and voting rights, have been “the definition of hubris and not restraint.”


She said that she hopes Chief Justice Roberts rules to allow same-sex marriage across the country. She added that though Roberts wondered during oral arguments that same-sex marriage bans could be seen as a form of sex discrimination, she believes he will rule on more “dignity-based grounds,” which favor treating same-sex couples and opposite-sex couples as equals.


The event’s first panel and later the second also touched on how the court will modernize to adapt to new technology, such as making oral arguments available by livestream. Currently, the court posts audio recordings of oral arguments at the end of the week in which they occur and does not allow reporters electronics to file stories from the court.


Cameras could “invite disruptions” and encourage protesters looking to get their names in the news, Whelan noted.


Rep. Gerry Connolly (D-Va.), the author of legislation to bring cameras into the courtroom, countered during the second panel that cameras are absolutely necessary as part of a larger effort to modernize the court via transparency and public oversight.


“Nothing is less transparent than the United States Supreme Court,” Connolly said, arguing that a court with such tremendous powers to overturn democratically passed legislation should be more accountable to the people and not some sort of “mystical priesthood.”


Connolly invoked the infamous Dred Scott decision, which reinforced slavery in 1857, as an argument for transparency as a means of public oversight.


“You want to see the power of the court for evil, for catastrophic consequences? Dred Scott is not a bad place to start,” he said.


Former federal Judge Nancy Gertner said that she doesn’t believe the court will ever change its policies on communications technologies in the courtroom, but noted that its reluctance to change its in-house rules doesn’t mean the court is entirely resistant to modernizing its legal thinking.


She pointed to recent decisions about privacy in cell phones as an example of how the court has modernized some of its arguments, because the idea of discussing “British soldiers knocking down your door” as an apt model for all of the different possibilities that arise with technologies like GPS, cloud computing and encryption is “absurd.”


“You have to abstract from those principles to apply them today,” Gertner said.

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