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Roberts' Brand of Judicial Conservatism


Court watchers agree that Judge John Roberts is certainly a conservative. If confirmed, how he makes decisions could depend on what type of conservative he is.

Jeffrey Rosen is a law professor at George Washington University. He's identified five different brands of conservatism and he joined us to talk about that.

Professor JEFFREY ROSEN (George Washington University): Good morning.

MONTAGNE: Conservative justices on the court don't necessarily form a solid voting bloc, so why don't we start by taking an issue that's well known, abortion, and tell us some of the types of conservatives and how they might agree or disagree on that question.

Prof. ROSEN: Well, there's an interesting split on abortion between originalist conservatives, who think the Constitution should be interpreted in light of the original understanding of its framers and ratifiers, and traditionalist conservatives who care about the stability of law and are reluctant to overturn judicial precedents. When it came to re-examining Roe v. Wade, for example, that Justices Scalia and Thomas, two constitutional originalists, voted to overrule the decision in the name of constitutional fidelity, while Justices O'Connor, Kennedy and Souter, who are more traditionally minded, were more concerned about the stability of the law.

MONTAGNE: Quickly let's turn to the other three possible versions of conservative any justice might be.

Prof. ROSEN: Well, there are certainly constitutional pragmatists who are very concerned about the practical effects of judicial decisions in everyday life. They're less concerned with legal materials like the text and history of the Constitution and more interested in the empirical effects of decisions on everyday life.

There are also judges who are very concerned about deferring to legislatures, and on the current court there are no real acolytes of this sort of judicial deference.

Finally, there's a group of libertarian conservatives who are determined to strike at the heart of the welfare state. They want to resurrect what they call the Constitution in exile and overturn a lot of doctrines that allow congressional regulation of the economy.

MONTAGNE: So of these five categories, where does Judge Roberts fit?

Prof. ROSEN: Well, it's obviously the central question for the Senate to determine: what kind of judicial conservative is Judge Roberts? He hasn't written much as a judge, but from all indications, he is not an enthusiastic advocate of constitutional originalism. At no point in his career has he ever tried to impose a top-down theory which says that all cases have to be decided in light of their fidelity to the history of the Constitution. On the contrary, Judge Roberts has tended to take a more bottom-up approach. He's been interested in the facts of particular cases, in individual precedence, and he's willing to be led wherever the legal materials take him.

MONTAGNE: We spoke about abortion earlier. Could you give us another case that would--it would really make a difference which kind of conservative Judge Roberts is?

Prof. ROSEN: The most dramatic illustration of the importance of distinguishing among different kinds of judicial conservatives is the enemy combatant cases. Remember recently, the Supreme Court upheld President Bush's ability to detain enemy combatants, but three different conservative camps reached very different results. Justice Sandra Day O'Connor and Chief Justice William Rehnquist, writing for the plurality, would have allowed the president to detain enemy combatants, but only with regulations that were imposed by judges. Justice Antonin Scalia thought the president had no authority to detain without congressional authorization, and Justice Clarence Thomas would have given the president complete discretion to detain without any oversight whatsoever. And where Judge Roberts comes down on these philosophical questions might very much affect the way that he came down as well.

MONTAGNE: Thank you very much for joining us.

Prof. ROSEN: Thank you for having me.

MONTAGNE: Jeffrey Rosen is a law professor at George Washington University and legal affairs editor of The New Republic.

You're listening to MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.

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