Questions for Roberts

In an op-ed piece in the New York Times, Kathleen Sullivan suggests some questions to ask Judge Roberts at his confirmation hearing. These seem like very good questions; I would be especially interested to hear his answers to the third. (Four other people also contributed questions, but those seem substantially less relevant to me)

One question about which I would love to see Judge Roberts’ reasoning would be, To what extent do individuals have the right to make their own medical decisions, and why? Unfortunately this would be an inappropriate confirmation question; any of the germane subquestions would be far too likely to have direct bearing on cases that could come before the court in the future. But his thinking on this matter would be (IMHO) very illuminating: this is closely associated with the question of the rights of individuals when they do not have any obvious conflict with the rights of other individuals or the duties of the state, and therefore of his broader approach to questions such as privacy. Sullivan’s third question broaches this indirectly, though, so it may answer the matter well enough.

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Published in: on September 12, 2005 at 00:43  Comments (8)  
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8 Comments

  1. Are current attacks on judicial independence the worst in our history? How would the chief justice have defended against them? How will you?
    Well, I believe in the importance of judicial independence. However, the recent backlash to judges legislating from the bench is understandable.
    Somehow the judges must be kept in the realm of interpreting and enforcing laws, not making them.

  2. Are current attacks on judicial independence the worst in our history? How would the chief justice have defended against them? How will you?
    Well, I believe in the importance of judicial independence. However, the recent backlash to judges legislating from the bench is understandable.
    Somehow the judges must be kept in the realm of interpreting and enforcing laws, not making them.

  3. There’s an interesting balance that needs to be maintained, and hearing the opening statements this morning suggests that the Senate occasionally needs to be reminded as well – in both directions. On the one hand the judiciary needs to interpret the law rather than make it, but on the other hand it shouldn’t be a simple rubber stamp for acts of Congress.

  4. There’s an interesting balance that needs to be maintained, and hearing the opening statements this morning suggests that the Senate occasionally needs to be reminded as well – in both directions. On the one hand the judiciary needs to interpret the law rather than make it, but on the other hand it shouldn’t be a simple rubber stamp for acts of Congress.

  5. in a lot of ways, our federal judiciary has established a tradition of enforcing the precepts of the constitution, rather than merely its specific statements. by this, i mean that it has taken the role of extending liberty and safeguarding rights from an encroaching government
    in a social environment where the protection of individual and minority rights is politically unpopular (and this ignored by both the executive and legislative brances of the government), it becomes even more important for the judiciary to take on this role.
    doesn’t it?

  6. in a lot of ways, our federal judiciary has established a tradition of enforcing the precepts of the constitution, rather than merely its specific statements. by this, i mean that it has taken the role of extending liberty and safeguarding rights from an encroaching government
    in a social environment where the protection of individual and minority rights is politically unpopular (and this ignored by both the executive and legislative brances of the government), it becomes even more important for the judiciary to take on this role.
    doesn’t it?

  7. That’s a fairly recent (40 years) development, though. The Supreme Court was also the source of Plessy v. Ferguson. On the average, I’d say it’s been safest to have a court that views its powers in a fairly limited fashion. The role of “extending liberty and safeguarding rights from an encroaching government” implies a sociopolitical plan on the part of the justices; while that may be a plan that I applaud, over time one is just as likely to have justices with the opposite intent, and in either case the Supreme Court seems like a pretty dangerous place (small body with permanent membership) to be doing those things. I would rather have a court deciding on the law, and the Legislature writing it.
    On the other hand, I don’t agree with some members of the Republican party that this means that the court should simply let the Congress do whatever it wants; both the Legislature and the Executive have been rapacious gatherers of any powers they can get their hands on in the past few decades, and one important role of the court is to smack them when they overreach. (e.g., the Executive suspending habeas corpus, or the Legislature trying to decide individual cases at law or impose punishments by bill of attainder – which it could be argued that many of our “minimum sentencing” laws are. My point here not being to urge a particular course of action by the court, but to emphasize that issues like this are where the court needs to take a very active role, especially in preserving the institutional boundaries that keep the government working)

  8. That’s a fairly recent (40 years) development, though. The Supreme Court was also the source of Plessy v. Ferguson. On the average, I’d say it’s been safest to have a court that views its powers in a fairly limited fashion. The role of “extending liberty and safeguarding rights from an encroaching government” implies a sociopolitical plan on the part of the justices; while that may be a plan that I applaud, over time one is just as likely to have justices with the opposite intent, and in either case the Supreme Court seems like a pretty dangerous place (small body with permanent membership) to be doing those things. I would rather have a court deciding on the law, and the Legislature writing it.
    On the other hand, I don’t agree with some members of the Republican party that this means that the court should simply let the Congress do whatever it wants; both the Legislature and the Executive have been rapacious gatherers of any powers they can get their hands on in the past few decades, and one important role of the court is to smack them when they overreach. (e.g., the Executive suspending habeas corpus, or the Legislature trying to decide individual cases at law or impose punishments by bill of attainder – which it could be argued that many of our “minimum sentencing” laws are. My point here not being to urge a particular course of action by the court, but to emphasize that issues like this are where the court needs to take a very active role, especially in preserving the institutional boundaries that keep the government working)


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