Originally published in the San Antonio Express-News, July 24, 2005
by Susan Ives

If I were president (when pigs fly) and had the chance to nominate a Supreme Court justice (fat chance) my choice would not be D.C. Circuit Court Judge John Roberts.

Let’s face it: the odds of my embracing anyone nominated for the Supreme Court by President Bush are remote. He’s a conservative. I’m not. End of story.

But not quite. Perhaps a more meaningful scenario would be that if I were a senator (highly unlikely) and had to vote on John Robert’s nomination, how would I vote? At this point, I’m not sure.
For starters, I’d like to know more about Roberts’ judicial philosophy.

The president has indicated that he supports a “strict constructionist” approach in the judiciary. In the second presidential debate with John Kerry, he elaborated on this by condemning judges who allow “personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.”

If life were only so easy. Judges are called judges because they make judgments. If all that was required of a judge was to read the words in the constitution and automatically interpret the law, Bill Gates could write a computer program to replace the Supreme Court. Sorry, Bill: Supreme Court version 1.0 is not in the offing. It’s more complicated than that.

I’ve often thought that interpreting the Constitution is a lot like interpreting the Bible. Both documents were written a long time ago and claim to espouse eternal truths.

The strict constructionist approach, also called textualism, literalism or the plain words approach, looks no further than the words of the Constitution; it doesn’t try to infer any intended meanings.

Let’s take that approach to the Bible by looking at the sixth commandment, “Thou shalt not kill” in the King James and many other versions. If you were to take a strict constructionist approach, looking no further than the words of the Bible, you would take this to prohibit all killing, including the death penalty, killing in war, and perhaps even the killing of animals for food, since the ban on killing doesn’t specify humans.

Most Christians (including President Bush, who supports the death penalty, took the country to war and enjoys tucking into a juicy steak) don’t interpret the Bible this way. Some do: the Quakers and Mennonites object to war; Seventh Day Adventists are vegetarians. The word “kill,” unambiguous on the face of it, it apparently not a clear as it appears at first blush.

The Constitution contains similar challenges. The First Amendment, for example, says that “Congress shall make no law . . abridging the freedom of speech.” In a strict constructionist approach, no law means no law. Yet in Schenck v. U.S. (1919) Justice Oliver Wendell Holmes wrote: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”

Strict constructionism is a myth. Words are human constructs and subject to human interpretation. It is naïve to believe otherwise.

Pro-choice supporters, myself included, are especially interested in hearing about Robert’s stance on Stare Decisis, literally, let the decision stand, or respecting the Supreme Court’s own past decisions. While serving as Deputy Solicitor General, Roberts co-wrote a Supreme Court brief in Rust v. Sullivan, which argued that Roe v. Wade was wrongly decided. I’d like to know why.
In Rancho Viejo v. Nortion (2003) Roberts sided with a developer required by the Endangered Species Act to remove a fence so that the arroyo toad could move freely through its habitat. He argued that the act overstepped the federal government’s power to regulate interstate commerce and suggested the court should “consider alternative grounds” for protecting the toad that are “more consistent with Supreme Court precedent.” I’d like to know what those grounds are.

Judge Roberts, I’d like to get to know you better. We all would. Let the hearings begin!

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