Thinking People's Reactions to John Roberts

Hugh Hewitt, in his Weekly Standard column of 07/21/2005, points out an otherwise-neglected fact about John Roberts. He brings to the Supreme Court an understanding of Article II constitutional law that none of the other justices has.

Almost every Supreme Court justice arrives at SCOTUS well versed in his or her Article III duties and rights, and most have a great deal of experience with the Article I powers of the Congress, since most cases and controversies that come before federal judges connect at some point with Congressional enactments.

But only lawyers with vast executive branch experience really appreciate Article II and the role of the executive, and few are as well versed in the powers of the presidency--and its limits--as veterans of the West Wing lawyers' club.

For four tumultuous years of the Reagan presidency, Judge Roberts was close at hand as Ronald Reagan navigated the course of the country's recovery from economic crisis and the Vietnam Syndrome. This was the era of the deployment of the cruise missiles and Pershing IIs in Europe, of Grenada and the massacre of Marines in Lebanon, of the "Evil Empire" speech. Roberts observed and participated in one of the critical passages of American history, a period in which "energy in the executive," to use Hamilton's phrase from Federalist 70 helped the nation recover from the disastrous decade of the '70s.

This experience, and of course Roberts's years as deputy solicitor general, will equip the new justice more than most of his predecessors with an ear for arguments about the need for presidential power in areas where that power is crucial, as in the GWOT.

Excellent point, and one that bears serious consideration by the senators who speak about wanting "balance" on the Supreme Court.

Then there's David Cohen's post at Brothers Judd blog, in which he answers Sen. Schumer's list of questions for John Roberts. A bit of background before reading the post: During John Roberts' judicial hearings in 2003 for his current position on the DC Circuit Court, Sen. Orrin Hatch categorized Sen. Schumer's questions as "dumba**" (link here). David Cohen's abbreviations, "daq" or "sdaq" refer to Schumer's dumba** questions.

Cohen obviously put a lot of thought into the answers he'd like to see Roberts give, such as these samples:

Q: When can Government regulate public speech by individuals?

A: The federal government can't, except arguably public speech by Senators and Members of the House. The states may, consistent with their own constitutions.

Q: Must the Government avoid involvement with religion as a whole, or is the prohibition just on Government involvement with any specific religion?

A: There is no prohibition on government "involvement" with religion, or any specific religion. However, the federal government is not a government of general powers that may act unless it is prohibited. It is a government of limited powers that may not act unless it is permitted. [NB: Even if I drop the pretense that I don't know what he's talking about, I don't know what he's talking about here. This is a spectacular example of, in Orrin Hatch's phrase, Schumer's "dumb ass" questions.]

Q: What is your view of the Supreme Court's opinion in Santa Fe Independent School District v. Doe (2000), which held that prayer in public schools is prohibited even where it is student-organized, non-denominational, and at a football game?

A: What part of "Congress" is hard to understand?