Topic: Rule of Law: Concerns and Threats
Senator: Graham
Date: SEPTEMBER 13, 2005
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GRAHAM: Last two questions.
In your opening statement, you articulated the rule of law in a way that I thought was just outstanding. It was emotional, it made sense, average people could understand it: that the courtroom is a quiet place, Judge Roberts, where you park your political ideology and you call the balls and you call the strikes, and you try to give every American a fair shake and you put politics in its perspective.
What is your biggest concern, if any, about the rule of law as it exists in America? And what are the biggest threats to the rule of law as we know it today?
ROBERTS: Well, you know, the rule of law is always vulnerable because the Supreme Court, as has been pointed out often in history, has only the persuasive power of its opinions to command respect.
There have been famous episodes in the past, you know -- President Jackson, Chief Justice Marshall has given his opinion; let's see him enforce it -- other episodes of that sort.
But over time, the legitimacy of the Supreme Court has been established and it's generally recognized across the political spectrum that it is the obligation of the court to say what the law is and that the other branches have the obligation to obey what the Supreme Court says the law is.
ROBERTS: The one threat I think to the rule of law is a tendency on behalf of some judges to take that legitimacy and that authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law.
And because it's the Supreme Court, people are going to follow it even though they're making the law.
The judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before, and I'll just repeat myself: The framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, "Let's take all the difficult issues before us and let's have the judges decide them. " That would have been the farthest thing from their mind.
The judges had the obligation to decide cases and the authority to interpret the Constitution because they had to decide cases. And they were going to decide those cases according to the law, not according to their personal preferences.
Judges have to have the courage to make the unpopular decisions when they have to. That sometimes involves striking down acts of Congress. That sometimes involves ruling that acts of that executive are unconstitutional. That is a requirement of the judicial oath. You have to have that courage, but you also have to have the self- restraint to recognize that your role is limited to interpreting the law and does not include making the law.
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