Hearing of the Senate Judiciary Committee on the Nomination of Judge John G. Roberts for Chief Justice of the United States

Hearing of the Senate Judiciary Committee on the Nomination of Judge John G. Roberts for Chief Justice of the United States

HATCH QUESTIONS ROBERTS ABOUT JUDICIAL PHILOSOPHY

Roberts: Judges Interpret, Not Make Laws

Sen. Orrin G. Hatch (R-Utah) today questioned Judge John G. Roberts about the approach he would take as Chief Justice of the United States.

The following is a transcript of the first round of Hatch's questions:

HATCH: Welcome, again, Judge Roberts.

ROBERTS: Thank you...

HATCH: I read an interesting book over the weekend, Cass Sunstein's recent book published by Basic Books. Now, he discussed various philosophies with regard to judging. And I just would like to ask you this question: Some of the philosophies he discussed were whether a judge should be an originalist, a strict constructionist, a fundamentalist, perfectionist, a majoritarian or minimalist -- which of those categories do you fit in?

ROBERTS: I didn't have a chance to read Professor Sunstein's book. He writes a different one every week; it's hard to keep up with him. But, you know, I think...

HATCH: I've read a number of them.

ROBERTS: Like most people, I resist the labels. I have told people, when pressed, that I prefer to be known as a modest judge. And, to me, that means some of the things that you talked about in those other labels. It means an appreciation that the role of the judge is limited; the judge is to decide the cases before them; they're not to legislate; they're not to execute the laws.

Another part of that humility has to do with respect for precedent that forms part of the rule of law that the judge is obligated to apply under principles of stare decisis.

Part of that modesty has to do with being open to the considered views of your colleagues on the bench. I would say that's one of the things I've learned the most in the past two years on the Court of Appeals: how valuable it is to function in a collegial way with your colleagues on the bench; other judges being open to your views; you being open to theirs.

They, after all, are in the same position you're in. They've read the same briefs. They've heard the same arguments. They've looked at the same cases. If they're seeing things in a very different way, you need to be open to that and try to take another look at your view and make sure that you're on solid ground.

Now, I think that general approach results in a modest approach to judging which is good for the legal system as a whole. I don't think the courts should have a dominant role in society and stressing society's problems. It is their job to say what the law is. That's what Chief Justice Marshall said, of course, in Marbury v. Madison.

And, yes, there will be times when either the executive branch or the legislative branch exceeds the limits of their powers under the Constitution or transgresses one of provisions of the Bill of Rights. Then it is emphatically the obligation of the courts to step up and say what the Constitution provides, and to strike down either unconstitutional legislation or unconstitutional executive action.

But the court has to appreciate that the reason they have that authority is because they are interpreting the law. They are not making policy. And to the extent they go beyond their confined limits and make policy or execute the law, they lose their legitimacy. And I think that calls into question the authority they will need when it's necessary to act in the face of unconstitutional action.

HATCH: Now, I know that I have only mentioned a few of the so- called descriptions of various philosophical attitudes with regard to judging. But am I correct in interpreting that you are probably eclectic, that you would take whatever is the correct way of judging out of each one of those provisions? There may be truths in each one of those positions, and none of them absolutely creates an absolute way of judging.

ROBERTS: Well, I have said I do not have an overarching judicial philosophy that I bring to every case. And I think that's true.

HATCH: OK.

ROBERTS: I tend to look at the cases from the bottom up rather than the top down. And I think all good judges focus a lot on the facts. We talk about the law, and that's a great interest for all of us. But I think most cases turn on the facts, so you do have to know those. You have to know the record.

In terms of the application of the law, you begin, obviously, with the precedents before you. There are some cases where everybody's going to be a literalist. If the phrase in the Constitution says two-thirds of the Senate, everybody's a literalist when they interpret that.

Other phrases in the Constitution are broader: unreasonable searches and seizures. You can look at that wording all day and it's not going to give you much progress in deciding whether a particular search is reasonable or not. You have to begin looking at the cases and the precedents, what the framers had in mind when they drafted that provision.

So, yes, it does depend upon the nature of the case before you, I think.

HATCH: Well, thank you.

On the War Powers Act, I remember when Senator Heflin years ago in the Breyer hearing said, You, of course, have been here at various times. Do you have any particular thoughts concerning the authority and what ought to be done relative to this or do you have feel feelings that the War Powers Act is a proper approach to this issue?

Judge Breyer's simple answer was, I do not have special thoughts they I would think would be particularly enlightening in that area. He did not get drawn into interpreting the War Powers Act for the committee, and I suspect that that's the way you feel as well. Now, my friend the chairman held up a chart with a number of cases that he said relied on Roe v. Wade. In fact, if I heard him correctly, he called Roe a super-duper precedent.

Now, I'm not that a superduper precedent exists, between you and me, but have said that Planned Parenthood v. Casey, very important case, reaffirmed Roe. But let me just ask you this: Am I correct that Casey reaffirmed the central holding in Roe but substantially changed its framework?

ROBERTS: That's what the joint opinion of the three justices said. It was reaffirming the central holding. It revisited and altered the framework...

HATCH: But there were only a few votes to simply reaffirm Roe, weren't there, in the Casey case?

ROBERTS: Well, the plurality opinion is regarded, I think, as the opinion of -- it's the opinion of the plurality, but as the leading opinion of the justices and the majority. It's one the judges look to in the first instance.

There were separate opinions that disagreed with some of the ways in which that plurality revisited Roe. It reaffirmed the central holding in Roe v. Wade, it dispensed with the trimester framework, and it substituted for the strict scrutiny that Roe had established the undue burden analysis that, hence, since the time of Casey, has governed in this area.

HATCH: Well, as I recall it, there were only a few votes, as you've mentioned, to simply reaffirm Roe. But does this suggest that Casey itself noted the troubling features of Roe and indicated that Roe's framework has not been workable?

ROBERTS: Well, the question of the workability of the framework is, I think, one of the main considerations that you look to under principles of stare decisis, along with the settled expectations, whether a precedent has been eroded.

That was one of the factors that the court looked at in Casey in determining, I think, to alter the framework of Roe, the trimester framework and the strict scrutiny approach, at least in the terms that were applied by the joint opinion.

HATCH: Our chairman asked if former Chief Justice Rehnquist's opinion in the Dickerson case upholding Miranda would apply to Roe v. Wade. And if I recall correctly, you properly declined to answer, but am I right that Chief Justice Rehnquist repeatedly believed that Roe should be overruled?

ROBERTS: That was his view, yes.

HATCH: And doesn't that mean that Rehnquist himself did not believe that his Dickerson holding should apply to Roe? Would that be a fair conclusion?

ROBERTS: Well, based on his published opinions, and I don't remember -- certainly he wrote in Casey. I don't know if he's written since then. So I just hesitate to ascribe views from 1992 to the current.

HATCH: OK. Now, the chairman and ranking member have raised some important issues, and I may turn to some of them shortly. But I believe, however, that we should start with first principles before exploring how those principles should be applied.

Many activist groups, and some of my Senate colleagues, would like nothing more than that you take a series of litmus tests, that you reveal your positions on issues and tell us where you stand. I've been on this committee during the hearings on nine Supreme Court nominations. I voted to confirm all of the nominees, Democrats and Republicans. As I described yesterday, I agree that this committee needs answers, but only to proper questions.

The important question is not what your views are on any particular issue. You are not campaigning for elective office. The question that needs to be answered is how you view the role of unelected judges in a representative democracy.

And I know you've said you do not have what might be described as a carefully calibrated, highly defined judicial philosophy, but as each individual case comes before you with its own unique facts and issues -- yesterday you gave us your commitment that you will approach that case within a certain framework.

Now, I am more interested in learning more about that framework, that perspective on what you believe your job as a judge really is, than I am in how you specifically implement that framework in specific cases or individual cases.

Now, this is where I do differ with some of my colleagues. I want to know more about how you get -- or how you intend to get -- to a conclusion, while some appear to only want to know what the conclusion will be, like on issues such as abortion.

Some think that judges exist to defend and promote progress, preserving the gains of the past and bringing us to a better future of equality and justice. Now, that does not sound -- to use a word you have used to describe judges -- very modest to me.

On the other hand, Senator DeWine noted Justice Byron White, appointed by President Kennedy, said that judges decide cases; and I thought that was an important quote yesterday.

Yesterday you used the analogy of an umpire who calls balls and strikes but neither pitches or bets. Please help the committee sort this out by describing further the role you believe unelected judges play or should play in our system of government.

Are they charged, for example, with using the Constitution affect cultural and political reform, or does the Constitution require that this should be left to the people and their elected representatives?

How can the judiciary sit in constitutional judgment over the legislative and executive branches while still remaining co-equal with them? If you could kind of take a crack at those various questions, I'd appreciate it.

ROBERTS: Well, Justice White's insight that was quoted by Senator DeWine yesterday, that judges' obligation is to decide cases, really has constitutional significance.

It goes back to Marbury vs. Madison. You know, the Constitution doesn't have any provision that says, when the judges, but the way are to interpret the Constitution and tell us what it means. What it says is that they judges are to decide cases that arise under this Constitution -- this new Constitution -- and under and new laws that the Congress might pass.

And what Chief Justice Marshall explained in Marbury vs. Madison was that, well, if we've got to decide cases, that's our constitutional obligation. We've got to decide whether, in a particular case, something's consistent with the Constitution or not.

So, we have to decide what the Constitution means. And that's what the framers intended.

So, the obligation to decide cases is the only basis for the authority to interpret the Constitution and laws. That means that judges should be careful in making sure that they have a real case in front of them, a real live dispute between parties who have actual injury involved, actual interests at stake because that is the basis for their legitimacy.

And then they're to decide that case as a judge would, not as a legislator would based on any view of what's the best policy but as a judge would based on the law.

That's why the framers were willing to have the judges decide cases that required them to interpret the Constitution, because they were going to decide it according to the rule of law.

The people who framed our Constitution were jealous of their freedom and liberty. They would not have sat around and said, Let's take all the hard issues and give them over to the judges. That would have been the furthest thing from their mind.

Now, judges have to decide hard questions when they come up in the context of a particular case. That's their obligation. But they have to decide those questions according to the rule of law -- not their own social preferences, not their policy views, not their personal preferences -- according to the rule of law.

HATCH: You've explained that it's not the duty of the judiciary to make the law or to execute it, but to interpret it.

Now, I'm not naive. Sometimes interpretation is more of an art than a science. There are those who would label interpretation absolutely anything a judge might do or, two, the text of a statute or the Constitution.

But it seems to me there comes a point where a judge is using his own creativity and purpose and crosses the line between interpreting a text written by somebody else and in a sense creating something new.

Now, that troubles me since, as I said earlier, I believe in the separation of powers. If a judge crosses the line between interpreting and making the law, he has crossed the line supporting his legitimate authority from the legislative branch's authority.

Now, to me that's a very serious matter if we believe, as America's founders, did that the separation of powers -- not just in theory or in textbook but in practice in the actual functioning of government -- is the linchpin of limited government and liberty.

How do you distinguish between these two roles of interpreting and making law? And can you assure the Senate and the American people that you will stay on your side of this line?

ROBERTS: I will certainly make every effort to do so, Senator.

I appreciate the point that in some cases the question of whether you're interpreting the law or making the law -- that that line is hard to draw in some cases.

I would say not in most cases. I think in most cases, most judges know what it means to interpret the law and can recognize when they're going too far into an area of making law.

But certainly there are harder cases. And someone like Justice Harlan always used to explain that when you get to those hard cases you do need to focus again on the question of legitimacy and make sure that this is the question that you the judge are supposed to be deciding rather than someone else.

You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law. The judgment is right there.

They say, We don't think it's too much for a baker to work -- whatever it was -- 13 hours as day. We think the legislature made a mistake in saying they should regulate this for their health. We don't think it hurts their health at all.

That's right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said. So the fact that it's difficult to draw the line doesn't relieve a judge of an obligation to draw the line.

There are those more academic theorists who say, It's a question of degree. And since it's just a question of degree you shouldn't try to draw the line because it's hard sometimes to interpret the law without making the law. We should throw our hands up and say, 'Well, judges make the law,' and proceed from that.

That has not been my experience either as a judge or an advocate. My experience has been, in most cases you can see where the line is and you do know when judges are exceeding their authority and making the law rather than interpreting it.

And careful judges are always vigilant to make sure that they're adhering to their proper function and not going into the legislative area.

HATCH: Well, all of your experience has been either in the judicial branch, from your service as a clerk to then-Justice Rehnquist and your current role on D.C. Circuit, or in the executive branch, where you worked in the White House Counsel's Office, assistant to the attorney general and deputy solicitor general.

In contrast, I would note that Justice Breyer brought to the court his experience as chief counsel to this committee. As many commentators noted during the oral arguments of the sentencing guidelines case, Justice Breyer seemed more than willing to defend congressional prerogatives.

Now, what can you tell us to assure the committee that your lack of experience in working in the legislative branch of government might contribute to a lack of deference to federal statutes as you review those federal statutes on the bench?

ROBERTS: Well, I guess the first thing I would say is begin with my opinions as a judge over the past two years on the Court of Appeals. I think they show a healthy regard for the prerogatives of the legislative branch that is appropriate.

As an advocate, I've certainly been arguing deference to the legislature in appropriate cases. Other cases, of course, I was on a different side and arguing the opposite. So I'm familiar with the arguments.

I've not only been in a position where I've been pressing arguments, for example, for the executive branch. I have been arguing cases against the executive branch and frequently arguing cases for the proposition of deference in favor of the legislature.

I guess I would just hearken back to the model I was talking about earlier of Justice Jackson, who went from being FDR's attorney general to being a justice on the court who, I think, always had a healthy regard for the prerogatives of the legislative branch.

HATCH: Well, you claimed in your questionnaire that judges do not, quote, have a commission to solve society's problems, unquote. I cannot agree more.

But this is an interesting formulation. It is worth remembering. I think that my office and your office only exist because the American people have authorized them through the Constitution. In other words, the power that you have as a judge comes from the people.

Now, that would be a fair assessment, I take it?

ROBERTS: Yes.

HATCH: OK. Let me explore this question of precedent a little bit more with you. Obviously, the Supreme Court decides cases involving a range of issues and requiring application of different kinds of law, including regulations and statutes as well as the Constitution. All of these cases can set precedents which might be relied upon to decide future cases raising similar issues.

Now, what is your understanding of the role that precedent plays in these different categories of cases?

Is precedent equally authoritative in, for example, regulatory or statutory cases as in constitutional cases? As I understand it, the Supreme Court has long said that the strength of its prior decisions is related in part to the difficulty in correcting errors.

In constitutional cases, there is no external way to correct an error, except by constitutional amendment. Now, the Supreme Court says, therefore, that precedent is weakest in constitutional cases. Now, I have here a list of statements from Supreme Court decisions going back decades and decades to reflect this.

In 1997, Justice Sandra Day O'Connor wrote for the court in Agostini v. Felton that you mentioned earlier, that stare decicis or precedent is not a command but a policy, and it is a policy that is -- and I am quoting Justice O'Connor here -- quote, at its weakest when we interpret the Constitution, because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions, unquote.

In 1944, Justice Reed wrote for the court, in Smith v. Allwright, quote, In constitutional questions where correction depends upon amendment and not upon legislative action, this court, throughout its history, has freely exercised its power to re-examine the basis of its constitutional decisions, unquote.

Now, Mr. Chairman, I would like to place this list in the record if I can at this point.

SPECTER: Without objection, so ordered.

HATCH: Now, the bottom line is that precedent is weakest in constitutional cases. Does this distinction make sense to you, Judge Roberts? And has it, in fact, resulted in the Supreme Court overruling its previous interpretations of the Constitution with any frequency?

ROBERTS: The court has frequently explained that stare decisis is strongest when you are dealing with a statutory decision. The theory is a very straightforward one, that if the court gets it wrong, Congress can fix it. And the Constitution, the court has explained, is different. Obviously, short of amendment, only the court can fix the constitutional precedents.

HATCH: Do you believe that Congress is just as bound by constitutional limits as state legislatures?

ROBERTS: There are different limits, of course. But, yes, the limits in the Constitution on Congress are as important as limitations on state legislatures in the Constitution.

HATCH: Well, I ask that question because some seem to argue that overturning a statute that we pass here in the national legislature is almost presumptively an example of judicial activism. I have disagreed with the court on some of these statutes. The Morrison case is a perfect illustration to me. I'm, along with Senator Biden, the author of the Violence Against Women Act, and I felt that they overreached in that particular case.

But, in any event, some believe that it's judicial activism, while turning a blind eye to the much more common practice of striking down state legislation is just an afterthought.

Now, this argument gets even more complicated when the Supreme Court uses provision actually in the Constitution to strike down that a congressional statute, but provisions not in the Constitution to strike down state statutes.

America's founders were clear that the Constitution established a federal government of few and defined powers. It cannot regulate any activity it chooses, but they only regulate in those areas which the Constitution grants it power to regulate.

Now, one familiar area is found in Article I, Section 8, which gives the Congress the power to, quote, to regulate commerce among the various states, unquote.

Now, don't get me wrong, I do not necessarily agree with the Supreme Court, as I mentioned in the Morrison case. I don't think they always get it right when saying that Congress has overstepped its bounds with respect to regulating interstate commerce.

At the same time, some have warned that we are sliding into a constitutional abyss because the court has found just twice in more than 60 years that there is something, anything, that it says the Constitution does not allow Congress to do.

Now, could you comment on the Supreme Court's duty to exercise judicial review regarding Congress and state legislatures and their enactments?

ROBERTS: The obligation to say what the law is, including determining that particular legislation is unconstitutional, is, as Chief Justice Marshall said, emphatically the duty and province of the judicial branch.

You and I can agree or disagree on whether the court is right in a particular case. But if the court strikes down an act of Congress and it's wrong, the court shouldn't have done that, that's not an act of judicial activism, it's just being wrong.

The obligation to strike down legislation is with the judicial branch. I think, as Justice Holmes said, it's gravest and most delicate duty that the court performs. And the reason is obvious. All judges are acutely aware of the fact that millions and millions of people have voted for you and not one has voted for any of us.

That means that you have the responsibility of representing the policy preferences of the people making the determination about when legislation is necessary and appropriate and what form that legislation should take.

Our job is a very different one. We have to consider cases that raise the question from time to time whether a particular legislation is constitutional. And we have to limit ourselves in doing that to applying the law and not in any way substituting ourselves for the policy choices you've made.

But, as I would say, it's not judicial activism when the court do that. They may be right or they're wrong. And if they're wrong, they're wrong, but it's not activism.

HATCH: Well, thank you, Judge. You know, our time is almost gone. We've talked about a lot of substantive things in this half hour. I know that the American Bar Association has three times unanimously given you its highest rating of well-qualified, twice for your appeals court appointment and now again for your Supreme Court nomination.

Now, we're going to hear more from the ABA about this later in the week but I wanted to highlight one thing. The ABA examines three areas, including judicial temperament, and the ABA has laid out the criteria it uses for this.

They include such things as compassion, open-mindedness, freedom from bias and commitment to equal justice. And you've come out with the highest rating in all areas.

Many people note that you've been at the pinnacle of your profession, one of a handful of Supreme Court specialists and a partner at a very prestigious law firm in Washington, D.C. And yet you have consistently pursued pro bono work; that is, work for free to help people in need in which you use your skill and training and legal talent to help others.

Perhaps that does not fit with the stereotype that some would force upon you, but it is true and it is real and it says a lot about you as a person.

In the few minutes we have left, please describe some of the pro bono work you have done, why those particular projects are important to you and what you believe your efforts accomplished.

The position that you have been nominated for is chief justice of the United States. Do you plan to use that role as a bully pulpit to encourage members of the bar to take seriously their responsibility to undertake pro bono work as you have done throughout your legal career?

ROBERTS: Yes, Senator, if I am confirmed I would hope to do that and, if I'm not, I would hope to do that back on the Court of Appeals. I think it's a very important part of a lawyer's obligation. I'll mention just a couple of examples.

I handled an appeal here before the D.C. Court of Appeals on behalf of a class of welfare recipients who had their benefits cut off. Our position was that the benefits had been cut off in violation of the Constitution, violation of their due process rights to notice in an individualized hearing. These were the neediest people in the district. And we pressed their argument before the court of appeals.

The first case that I argued in the Supreme Court was a pro bono matter for an individual with a double jeopardy claim against the United States; again, someone who didn't have a lawyer, and I was very happy to do that.

And I said earlier, I regularly handled moot courts for people. I did one for minority plaintiffs in a Voting Rights case our of Louisiana. I did one challenging environmental effects in Glacier Bay and another one in the Grand Canyon.

In addition to those actually involved in the case, one of the pro bono activities that I'm most committed to is a program sponsored by the Supreme Court Historical Society and an organization called Street Law. They bring high school teachers to D.C. every summer to teach them about the Supreme Court. And they can then go back and teach the court in their classes.

And I've always found that very, very fulfilling.

HATCH: Well, thank you. My time is up.

Thanks, Mr. Chairman.

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