Restraint on Roberts

Geoffrey Stone, a liberal constitutional law professor at the University of Chicago, has an op-ed in The Chicago Tribune explaining why the Senate's Democrats should hold their fire on attacking John Roberts. It hits many of the points I've made on this site, and while drunk at bars. Stone also argues that the Roberts nomination was itself a victory for Democrats, who had every reason to expect the nomination of someone far more extreme.

But it is also the case that Roberts has never embraced the vacuous ideology of "originalism" and, frankly, he seems too smart to do so. Roberts is too good a lawyer, too good a craftsman, to embrace such a disingenuous approach to constitutional interpretation. Everything about him suggests a principled, pragmatic justice who will act cautiously and with a healthy respect for precedent.

This does not mean, of course, that he will not vote to eviscerate Roe vs. Wade or reject the rights of homosexuals or narrow the scope of affirmative action or expand the role of religion in public life or endorse the so-called "new federalism." He may vote to do some or even most of those things. But if he does, it will be in an open-minded, rigorous, intellectually honest manner, rather than as an ideologue whose constitutional principles derive more from fiction and faith than from legal reason.

Moreover, like many conservative appointees, there is every reason to believe that a Justice Roberts will gradually drift to the left, following the footsteps of Justices Harry Blackmun, Lewis Powell, John Paul Stevens, O'Connor, Anthony Kennedy and David Souter. Appointed as conservatives by Republican presidents, each of these justices evolved over time. Because they were not tethered to an inflexible ideology, they remained open-minded and continued to learn and to grow during their time on the court. And what they learned was important.