IndyLaw Net is an independent weblog written and managed by students and alumni of the Indiana University School of Law in Indianapolis, serving the IU Law-Indy community.

We welcome and encourage comments... Please check out ILN's commenting policy

Editor-in-chief, webmaster:
Lucas Sayre

Associate editors:
Karl Born

Karl Born
Brian Deiwert
Lucas Sayre
Kelly Scanlan
Nathan Van Sell


IU-Indy Law
Prof. Jeff Cooper
Daily Contentions
In the Agora
Commentary Track
Justin Gifford
Jelly Beans & Corduroy
Joe Delamater
Just Playin'
Obiter Dictum
Ryan Strup
The Sleepy Sage
Waiting for the Punchline
Myron's Mind
TV Law

Other Law Students
The Rattler
Ambivalent Imbroglio
John Branch
Phil Carter
De Novo
Paul Gutman
Kathryn Janeway
Jewish Buddha
The Kitchen Cabinet
Law Dork
letters from babylon
Letters of Marque
Mixtape Marathon
Notes from the Underground
Andrew Raff
Sua Sponte
Three Years of Hell
Unlearned Hand
Waddling Thunder

Legal Academics
Jack Balkin
Jeff Cooper
Rick Hasen
Lawrence Lessig
Eric Muller
Glenn Reynolds
D. Gordon Smith
Lawrence Solum
Peter Tillers
The Volokh Conspiracy
David Wagner
Tung Yin
White Collar Crime prof blog

Other Academic-types
Andrew R. Cline
Crooked Timber
Brad DeLong
Daniel W. Drezner
Joseph Duemer
Amitai Etzioni
Rebecca Goetz
Kieran Healy
Mark A. R. Kleiman
Brett Marston
History News Network
Michael Tinkler

Other Lawblogs
Program for Judicial Awareness
Howard J. Bashman
Stuart Buck
Janell Grenier
Sam Heldman
Tech Law Advisor
Denise Howell
Ken Lammers
Legal Reader
Math Class for Poets
Nathan Newman
Statutory Construction Zone
Indiana Law Blog
Timothy Sandefur
Fritz Schranck
Stop the Bleating
Pejman Yousefzadeh

Legal News
The Jurist
CNN - Law

Sapere aude - dare to be wise
Wednesday, July 20, 2005
John Roberts: Behind the Curtain
Posted 2:29 PM by Joshua Claybourn
Perhaps the best way to examine any potential nominee for the Supreme Court is to first look at any possible negatives. How will people attack John Roberts? In general he has received overwhelming praise from Republicans and measured respect from Democrats. But we would be naive to think such calm nerves will carry the day, and we would do well to look behind the curtain and examine how Roberts will be attacked.

There appears to be two chief areas of opposition - his briefs in the Solicitor General's office and the decisions he penned during his brief stint as an appellate judge. As Deputy Solicitor General Roberts wrote a brief that argued Roe v. Wade was wrongly decided and should be reversed. But the Solicitor General has a client: the President and his administration, and as such he argues as the President directs in the same way that an attorney argues as his client directs. I do not doubt that Roberts disagrees with the holding in Roe v. Wade, but opponents should be cautious in attributing too much of his work as deputy Solicitor General to his own beliefs. The briefs reads:
We continue to believe that Roe was wrongly decided and should be overruled . . . [T]he Court's conclusion[] in Roe that there is a fundamental right to an abortion . . . find[s] no support in the text, structure or history of the Constitution.
That "we" is the president and his administration. As Deputy Solicitor General he also opposed a congressional effort - following the 1980 Supreme Court decision Mobile v. Bolden - to make it easier for minorities to successfully argue that their votes had been diluted under the Voting Rights Act. In private practice, he also wrote a friend-of-the-court brief arguing that Congress had failed to justify a Department of Transportation affirmative action program. (Adarand Constructors, Inc. v. Mineta, 2001). Based on these briefs, some groups will complain that Roberts is "anti-minority" or even racist. But such criticisms say much more about the critic than Roberts, and display an extreme ignorance of even basic legal principles.

This is best demonstrated in Roberts' own words in Hedgepeth v. Washington Metro Authority, a case where a twelve-year-old girl was taken into custody, handcuffed, and driven to the police station because she ate a french fry in a Washington metro station. Roberts wrote the opinion for the D.C. Circuit, affirming a district court decision that dismissed the girl's complaint, which was based on the Fourth and Fifth amendments.

Does that mean Roberts thinks fries should be banned in metro stations, or that the law which dictated she be arrested was a good one? No. He began the opinion by noting that "No one is very happy about the events that led to this litigation." Nevertheless, the law was clear and the court is not authorized to second-guess the wisdom of the District's policies: "The question before us is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution."

One way to tell an informed legal pundit from an ignorant one is that informed observers understand there are numerous ideas and laws that may be stupid, but are not unconstitutional. As Roberts wrote: "Rational basis review does not authorize the judiciary to sit as a superlegislature." Roberts' opinion was joined with unanimous support from the panel, which itself was affirming a district court opinion. Roberts isn't exactly a radical jurist.

If history is any indication, those who oppose Roberts' intellectually sound judicial approach will simply settle for personal attacks that have little to do with judicial philosophy. Some conservatives have started down that road, with Michael Meckler complaining that Roberts has worked in Washington for too long and was too close to his law partners, some of whom were - gasp! - Democrats that "helped defend both President Clinton and the Democratic National Committee."

Judges are not politicians and should be judged on their legal approach alone. But even if we do look beyond the law and into Roberts' personality, we see a real winner. Raised as a Hoosier in Northwest, Ind., Roberts has developed a reputation as calm, sensible, down to earth and respectful. Indeed, that Roberts would have such a close and warm relationship with partners who represented Clinton and the DNC only furthers the notion that Roberts is the right choice.

Update: Ann Coulter isn't happy because "Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever..." Yet Chief Justice Rehnquist had no more experience when he was selected. The comparison between Roberts and Rehnquist is a good one, too. Rehnquist once had Roberts as a law clerk and considers him a protege.

As seen in the
National Jurist
and on

Indianapolis Help Wanted

August 2003
September 2003
October 2003
November 2003
December 2003
January 2004
February 2004
March 2004
April 2004
May 2004
June 2004
July 2004
August 2004
September 2004
October 2004
November 2004
December 2004
January 2005
February 2005
March 2005
April 2005
May 2005
June 2005
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May 2006
June 2006
July 2006
August 2006
September 2006
November 2006
December 2006
January 2007
February 2007
April 2007
May 2007
March 2010

Weblog Commenting by