Topic: Judicial Philosophy
Senator: Hatch
Date: SEPTEMBER 13, 2005
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LEAHY: Senator Hatch?
HATCH: Well, thank you, Mr. Chairman. I'm happy to be here. And I appreciate your leadership -- you and Senator Leahy -- on this committee.
Welcome you, again, Judge Roberts, and appreciate...
ROBERTS: Thank you...
HATCH: And 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.
(LAUGHTER)
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.
ROBERTS: 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.
ROBERTS: 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.
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