The Countertop Chronicles

"Run by a gun zealot who's too blinded by the NRA" - Sam Penney of

Monday, July 25, 2005

Roberts on the Court

I've been posting a ton over at The High Road in defense of John Robert's. In particular, see the discussions here and here.

I think thoughthat this might be the most enlightening discussion on his views I have seen.

Its from an episode of McNeal Lehrer in 1997
JOHN ROBERTS, Former Deputy Solicitor General: I do think there’s a solid majority on the court for the proposition that federalism has to be taken seriously; that states do retain rights under our federal system; and that, for example, as the sheriffs were saying to the federal government, we want you to do this, we don’t work you. They work for the states, not for the federal government. That basic division of authority is designed to protect individual rights. That’s one area where I disagree with Prof. Tribe. I think by enforcing these structural limitations, states have their powers and rights. The federal government is limited. The end objective, as the framers intended, is to protect individual rights.

LAURENCE TRIBE: Margaret, if I--


LAURENCE TRIBE: For a moment. I have no disagree with and, in fact, have defended the view that separation of powers and federalism, properly understood, do protect individual rights. My concern is with decisions that are sort of heedless of limits. When, for example, the Supreme Court struck down the Brady Act, it did so in an opinion--one completely unnecessary part of which--threatens the constitutionality of all of the independent agencies. When Justice Scalia, writing for the court, expressed the rather remarkable proposition that one of the flaws with the statute wasn’t just that it commanded the states, rather it was that it used functionaries who were not answerable to the President. Individual rights, of course, are protected by separating powers as the Constitution conceives, but when the court, as in the Religious Freedom Restoration Act, decides that Congress is to be limited very strictly in protecting individual rights under the 14th Amendment, without even acknowledging a position that the full court had endorsed in the 1960's, namely that Congress has more power to raise the ceiling of protection than it does to lower the floor, then I think the court is acting in a way that is not really consistent with the rights that separated and divided powers are supposed to protect.

MARGARET WARNER: You’ve raised a couple of different issues. John Roberts, respond to the first one he raised, which was that in the Brady decision essentially could have very long range implications that could call into question the power of regulatory agencies that the federal government deputizes to do things. Do you think it could do that?

JOHN ROBERTS: Well, it could and it could not. I mean, that’s the way that a court functions. It decides the particular cases before it, and the next case will decide how broad that decision was meant to be and how narrow. The fact that the decision refers to questions that may implicate the constitutionality of independent agencies doesn’t mean that those agencies are unconstitutional. It means that those are issues that have to be addressed in the future.

About the modern day court - of which his appointment will fundamentally change it, he concludes with the following.
JOHN ROBERTS: Well, I think it’s a moderate court but one that is very serious about the limits it sees in the Constitution, whether it’s the limits on Congress, limitations on the federal government, or limitations on the court, itself. And if it’s a court that doesn’t seem so warm and embracing of theories that are popular on the law school campuses, I hope the other members of the panel will forgive me for not thinking that’s a serious flaw.


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