There are jobs people take because they want to right the wrongs of our society. That's a good reason for becoming a teacher, a clergyman or a doctor. But it's not a reason to become a judge.
That's why it was refreshing to read what Supreme Court nominee John Roberts told the Senate Judiciary Committee. "Judges must be constantly aware that their role, while important, is limited," Roberts wrote. "They do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law."
Just so.
Unfortunately, in recent years some members of the Supreme Court seem to have lost their way. They issue decisions with no grounding in the Constitution and no grounding in precedent. Sometimes they even overrule their own decisions simply because they've changed their minds.
Consider the 2003 decision in Lawrence v. Texas. In that case, the Court tossed out a state law that criminalized sodomy. The problem is that the Court had considered a similar case (Bowers) as recently as 1986 and reached the opposite decision.
Justice Anthony Kennedy wrote that the Bowers decision was "not correct when it was decided, and it is not correct today." That would be a reasonable position to take if Kennedy were a lawmaker in Texas. As Justice Clarence Thomas wrote in dissent, the law was "uncommonly silly," and "if I were a member of the Texas legislature, I would vote to repeal it." But Thomas noted it wasn't in the Court's power to overturn the law, since there's no right to privacy in the Constitution.
This went right along with the stance Thomas outlined in his own confirmation hearings in 1991. "I think overruling a case or reconsidering a case is a very serious matter," he told senators. "Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled."
Roberts seems to understand that he should avoid judicial activism. "A sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath," he told senators.
This is a far cry from the activism highlighted, again by Justice Kennedy, in this year's Roper v. Simmons decision. Kennedy wrote that there's now a "national consensus" against the use of the death penalty for juveniles. Well, there isn't -- at the time of the ruling, a majority of states with the death penalty still allowed it to apply to 16- and 17-year olds who commit certain premeditated and aggravated murders.
But even if there had been a consensus, it wouldn't be up to judges to decide that -- it would be up to legislatures to do so. Consensus comes from the people, not from our judges.
Roberts' philosophy also seems to differ from that of the justice he's been tapped to replace. For example, in the Grutter v. Bollinger affirmative-action case, Sandra Day O'Connor wrote, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Ah -- so racial preferences will be constitutional until the year 2028, at which time they'll be unconstitutional? That must be in one of the "emanations from a penumbra" most constitutional scholars somehow missed.
Years ago Associate Justice Potter Stewart, discussing pornography, said, "I know it when I see it." These days, that seems to be the view of many members of the Supreme Court -- "I know it's the law because that's what I say the law is."
John Roberts seems to know a judge's job is to read and apply the Constitution, not to rewrite it from the bench. That's the attitude we ought to expect from all our Supreme Court justices.
