I wrote this piece 2 or 3 years ago and never released it. But I’ve continued to be glad for Judge Roberts and even feel that the conservative supreme court just isn’t the boogeyman I feared it would be. (With the conservative judges ignoring all precedent in a rush to implement a conservative agenda.) We’ve got some really excellent judges today. So far… though there are also some big misteps as well
My opinion on Judge Roberts:
I know conservatives hate him right now for ruling against their views on several rulings. And liberals hate him because he’s a conservative on everything else. And I’m not going to defend any specific ruling on his part.
But I do see a theme I like: namely that he’s the only judge (except maybe Gorsuch) on the bench that will rule against his own beliefs if he feels that is what the law demands of him. That’s exactly what a good judge does.
What conservatives hate about him is that they don’t like the outcomes he creates. But judges aren’t supposed to be concerned about their own feelings about outcomes. They are supposed to interpret the law and rule on what the law says. If they don’t like what the law says, they should – as a citizen, not a judge! – go help changes the laws.
Where Roberts isn’t seen as ‘conservative enough’ is that he feels precedent matters. A very “conservative” position actually. I don’t think before Roberts it had ever occurred to me to ask which should win in a contest: original intent or decades or centuries of stare decisis. It is by no means obvious to me that there is some straightforward answer to that question. It should depend on so many factors.
Just how comfortable would most of us be with, for example, going back to the original intent of the law of not providing a lawyer if one can’t be afforded? Court-appointed lawyers were probably originally a misinterpretation of the constitution (though perhaps an honest misunderstanding). But I would not want the existing supreme court to undo such an interpretation of the law today after so much precedent. So at least in some cases, I can see that Roberts has the right idea. It’s just the specifics of the case we’re quibbling over now.
He’s a much better judge than people are giving him credit for because people no longer understand the role of the Supreme Court. That lack of understanding has played a massive role in creating the current political crisis situation today. Robert’s is probably saving us from much bigger problems had one of the other judges been the swing vote.
What I want is for every judge to start acting like him: to start taking the law seriously and not simply finding some way to magically reinterpret all laws to whatever they already believe the law should have been.
A Later Update
On the other hand, I don’t think Roberts is perfect. His ruling on DACA using the arbitrary and capricious standard was an abuse of that standard and we’re already starting to see the lower courts follow his lead in abusing it. So everything I said above is less about Roberts the person and more about what I believe is the right set of standards for a court to be following in general. And what we want out of courts are conservative rulings — not in the sense of ‘ideologically conservative outcomes’ — but in the sense of predictable outcomes because precedent and original intent are both followed.