Wednesday, August 03, 2005
Roberts On Judicial Restraint
From Volokh I learned that the National Archives had some Reagan era Roberts documents up. Among them I found this draft article on judicial restraint. He makes a number of points that are still extremely relevant today, such as:
A second means by which courts arrogate to themselves functions reserved to the legislative branch or the states is through so-called "fundamental rights" and "suspect class" analyses, both of which invite broad judicial scrutiny of the essentially legislative task of classification....Ann Coulter doesn't know what she is talking about. Also, classical liberals have nothing to fear from this man. Only the courts-must-reign-absolutely-or-we-are-lost people do, and striking terror in those people's hearts should be the first aim of any halfway rational US citizen.
Courts cannot, under the guise of constitutional review, restrike balances struck by the legislature or substitute their own policy choices for those of elected officials.
Two devices which invite courts to do just that are "fundamental rights" and "suspect class" review. It is of course difficult to criticize "fundamental rights" in the abstract. All of us, for example, may heartily endorse a "right to privacy." That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label "fundamental," and then resort to it as, in the words of one of Justice Black's dissents, "a loose, flexible, uncontrolled standard for holding laws unconstitutional....
Analysis based on "suspect classes" presents many of the same problems. Classifications based on race are suspect and do merit careful scrutiny, in light of the historic purpose of the Fourteenth Amendment. Extension of heightened scrutiny to other "insular and discrete" groups, however, represents an unjustified intrusion into legislative affairs. As with fundamental rights, there is no discernible limit to such intrusion. As Justice Rehnquist has put it: "Our society, consisting of over 200 million individuals of multitudinous origins, customs, beliefs, and cultures is, to say the least, diverse. It would hardly take extraordinary ingenuity for a lawyer to find 'insular and discrete' minorities at every turn in the road." Sugarman v. Dougall, 413 U.S. 634, 657 (1973) (dissenting opinion). Both "fundamental rights" and "suspect classes" stand as invitations for a degree of judicial intrusion not invited by the Constitution, a means through which courts impose values which do not have their source in that document.
Oh - and as for fair-minded:
Our concern is not with results in a particular case; it is with the institutional role of the courts in our federal system and the scheme of separation of powers. Our effort, therefore, will focus on the procedures and approaches which help define the judicial role. We will, specifically, urge courts to observe strictly the requirements of justiciability, to avoid testing the constitutionality of laws by those devices which permit ready intrusion into the domain of the legislature, and to exercise restraint in the formulation of equitable decrees.and:
A focus on these areas, directly related to the role of the courts rather than the merits of any particular dispute, evinces a concern that does not depend upon political exigencies. Throughout history and to this day both liberal and conservative interests have sought to enlist an activist judiciary in the achievement of goals which were not obtainable through normal political processes.
The exercise of sound judicial restraint is of course ultimately the responsibility of the judges themselves, but it is incumbent upon the other branches of government to aid in the endeavor. We in the executive branch will be doing our part through our program of litigation. We will not only urge judicial restraint when we are defending the federal government, but will also exercise self-restraint. We will not advance arguments which promote judicial activism even when such arguments might help us in a particular case. The end of success in any specific case does not justify the means of encouraging judicial activism.This striking fair-mindedness and a willingness to be bound by his own rules indicate that he is not a revolutionary at all. He will probably eventually gain considerable influence on the Supreme Court because of this characteristic, but it will never be a corrupting influence.