Topic: Modesty and Stability
Senator: Schumer
Date: SEPTEMBER 14, 2005
Contents
SCHUMER: How about modesty and stability? Let's try to talk about that.
And when we met, I was very impressed with the concepts of modesty and stability. They suggest to me you respect precedent and well-settled law. You've said that yourself here, particularly in reference to Senator Specter's opening round of questions. And that is a good opportunity for common ground.
I had a history professor, and he said -- Franklin Ford. He had Ford's rule of history: "We're no smarter than our fathers." Pretty good rule. And that's sort of a modest concept in history, not in jurisprudence.
So I'd like to find out a little bit more about modesty. So I'd ask you -- these can be well-settled; they can be 50 or 100 years ago. And please don't go on at length, but can you give me a few Supreme Court cases that are modest -- or represent modesty, is a better way to put it, at least in your view? And a few Supreme Court cases that would represent immodesty?
ROBERTS: Sure.
I guess I would think the clearest juxtaposition would be the cases from the Lochner era. If you take Lochner on one hand and, say, West Coast Hotel, which kind of overruled and buried the Lochner approach on the other. And the immodesty that I see in the Lochner opinion is in its reweighing of the legislative determination. You read that opinion, it's about limits on how long bakers can work. And they are saying, "We don't think there is any problem with bakers working more than 13 hours."
Well, the legislature thought there was, and they passed a law about it. And the issue should not have been, "Judges, do you do think this was a good law, or do you think bakers should work longer or not?" It should be, "Is there anything in the Constitution that prohibits the legislature from doing that?"
SCHUMER: How about another one? Or a modest one. You know, could be either way.
ROBERTS: You know, people talk about Brown v. Board of Education. And let me explain why I think that is an example.
ROBERTS: It's obviously a dramatic departure in American history and, in many respects, very bold. Yet I think it's more appropriately understood as a restrained decision compared to the decision that came before in Plessy v. Ferguson.
And you can see this if you'll look at the arguments of the lawyers, because what John W. Davis was arguing on the side of the board was to the court: "You need to be worried about the social consequences of upsetting this decision. People have lived their lives this way. If you overturn this, it's going to be disruptive, the consequences are going to be bad."
Thurgood Marshall, on the other side, was making a legal argument, addressed to the obligation of the court to apply the rule of law. And he said -- focused on the discrimination involved in the separation.
He made an argument -- and it was a very clever approach to the case, because he based his decision on precedent, as well -- saying, "You've had this recent case in Sweatt v. Painter. Don't talk to me about Plessy v. Ferguson. You are beginning the process of departing from that. Your recent decision here, if you're going to be consistent, you have to come out this way."
So, again, it seems odd, I know, to talk about things like modesty in such a bold decision, but it is, in my view, a more appropriate judicial- restrained decision.
SCHUMER: Let me ask you, this is a general question I was going to ask you that leads to this.
In other words, if a decision of the court issued many years ago is immodest, in your view, modesty could compel overruling?
ROBERTS: Well, I think you take...
SCHUMER: That's what you argued just a minute ago with Brown, I think.
ROBERTS: Well, sometimes the appropriate restrained approach -- now, with Brown, my point was the notion of precedent was one that Thurgood Marshall appreciated in arguing to the court that it shouldn't be simply a debate, he didn't want to debate it on John W. Davis's terms about Plessy, should it be overruled or not. He said, here's another precedent of the court. So he was arguing from precedent as well.
SCHUMER: Right.
But when you have the conflict, a past error, decision that was fundamentally immodest, let's say, and then years and years of it being on the books, stability argues, "Keep it on the books," and even modesty, with its respect for precedent, argues, "Keep it on the books," how do you draw that?
Can you just elaborate a little bit on how you weigh those two different concepts of, quote, "modesty"?
ROBERTS: Well, I think a modest approach requires beginning with the body of precedent. That's what judges do. And that's a recognition, just as Professor Ford said, that we're not necessarily -- we're not smarter than our fathers who laid down this precedent.
SCHUMER: Professor Ford.
ROBERTS: Professor Ford.
My point with respect to Brown was that Thurgood Marshall appreciated that, and then he was making an argument from precedent just as the way Davis was. And they kind of, I think, gave the court some comfort in departing from Plessy that they had already taken the initial step in Sweatt v. Painter.
SCHUMER: Let me go to -- I think Senator Durbin alluded to it, because this is one that was a little troubling, and maybe you can talk about it.
In the memo you wrote about Wallace v. Jaffrey, which had just been decided, involved church and state -- I am not interested right now in the specific holding. You wrote, "Rehnquist tried to revolutionize establishment clause jurisprudence and ended up losing the majority, which is not to say the effort was misguided."
Then you wrote -- because you were speaking approvingly of Rehnquist's attempt to revolutionize a well-settled area of law.
You also in the same memo criticized the opinion of Louis Powell, same case, criticizing as, quote, "a lame concurring opinion focusing on stare decisis."
SCHUMER: To at least the reader of this, it seems very immodest -- praising the revolutionary decision and sort of criticizing, saying it was lame opinion focusing on stare decisis.
Now, I know you wrote this 20 years ago, and I know you wrote it for your boss, Ronald Reagan, who you admire. I admire him too, but probably for different reasons.
But those words -- Ronald Reagan didn't command to you say, "I approve of Rehnquist's view to revolutionize Powell." I know you had to come out on that side.
Just please explain to me if you still stand by, not the holdings of the case, whether Wallace v. Jaffrey was correctly decided, but the language that you used, the thinking that you used.
How does that square with modesty? Or had you not developed the theory of modesty when you were there as a young clerk or young member of the, I guess at that point, Solicitor General's Office.
ROBERTS: No.
SCHUMER: No. Wherever you were.
ROBERTS: If it's 20 years ago, it would have been...
SCHUMER: It's 1985.
ROBERTS: It would have been in the White House Counsel's office.
SCHUMER: White House Counsel's office. Excuse me.
ROBERTS: And the memo that you are referring to, obviously it's speculation about what happened in the case.
SCHUMER: I know. How does it square with modesty? Did modesty arise in your way of thinking after that?
ROBERTS: It's not a question about me being a judge. It's a question about my describing what I was obviously speculating was going on in that particular case.
SCHUMER: You approved of it. You said the revolutionary aspects were not, which is not to say the effort was misguided. And then you said lame -- there is no real way to interpret that except pejoratively -- concurring opinion that focused on stare decisis.
ROBERTS: Saying that the effort was not misguided referred to what I had been speculating was the chief justice's effort to reformulate the approach in that case. It's the Lemon test, and we've talked about the Lemon test before and the pluses and minuses.
I've described it, I think it was today, maybe yesterday. It is a survivor. I noted when we argued the Lee v. Weitzman case that six of the justices had taken the position critical of the Lemon test -- six of the sitting justices. They never took it at the same time. It's still the test that applies. It would be the precedent that I would begin...
SCHUMER: I'm just going to cut you off, I apologize, because I have 16 seconds, and the chairman has said I have to ask the questions before.
Just assure me and maybe some more of us that modesty isn't a concept that you use when you want to slow things down because the courts are moving too fast, but you don't use when you think things should be sped up; that it's a general approach that sort of says to judiciary: Go slow in every aspect.
Try to convince me of that, if you can.
ROBERTS: Well, I'll try, Senator.
(LAUGHTER)
It is a neutral principle. Your suggestion that I apply it in cases where I want to but don't is, of course, a grievous insult to any judge -- the notion that they are result-oriented; that they would apply a particular approach one way in one sort of cases and a different way in another case.
That's not how I approach judging...
SCHUMER: Right.
ROBERTS: ... and not how I would approach judging, whether I'm back on the Court of Appeals or somewhere else.
It is a neutral principle. It reflects the -- and it's obviously not an original concept with me.
SCHUMER: No.
ROBERTS: There are judges, you go back throughout our history, that have articulated and recognized the principle of judicial restraint, that there are limits on what the judge can do.
And those judges have always explained that this applies whether or not I'm in favor of a particular result or not. It's a reflection of their institutional authority and their role, that their job is to interpret the law, not to make the law. And that applies without regard to what law you'd like to have made or not.
SCHUMER: Thank you.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Schumer.
Thank you, Judge Roberts.
Thank you all.
We will reconvene tomorrow morning at 9:00 a.m. That concludes our hearing.
ROBERTS: Thank you, Mr. Chairman.
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