The Roberts Court: The Struggle for the Constitution Read Online Free PDF Page A

during the hearings on his judicial philosophy. Hatch noted that he had recently read a book in which the author, legal scholar Cass Sunstein, discussed various judicial philosophies. “Some of the philosophies he discussed were whether a judge should be an originalist, a strict constructionist, a fundamentalist, a perfectionist, a majoritarian or a minimalist. Which of those categories do you fit in?” he asked Roberts.
    As he has ever since, Roberts resisted a label. “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,” he told Hatch. “It means an appreciation that the role of the judge is limited, that a 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. They’ve looked at the same cases. And 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.
    “Now, I think that general approach results in a modest approach tojudging which is good for the legal system as a whole. I don’t think the courts should have a dominant role in society and redressing society’s problems. It is their job to say what the law is.”
    And in perhaps one of his most memorable comments in those hearings, Roberts compared the job of a judge to that of a baseball umpire—the analogy that had stuck with Bush: “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical to make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire . . . . And I will remember that it’s my job to call balls and strikes, and not pitch or bat.” 7
    Senator Arlen Specter, committee chair and Republican from Pennsylvania, took up the question of Roberts’s view of stare decisis . Specter, a moderate Republican and longtime supporter of Roe v. Wade , probed Roberts as hard as he could, in the context of that abortion ruling, on his faithfulness to precedents of the Court. Specter and other defenders of Roe had reason to be suspicious of Roberts’s view of the Roe decision. As a lawyer in the Reagan administration, Roberts had written legal memos defending the administration’s anti-abortion policies. And as deputy solicitor general in the George H. W. Bush administration, he had signed a brief urging the Supreme Court to overturn Roe .
    To Specter’s questions on stare decisis , Roberts said, “I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the Court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.” 8
    But as to Roe v. Wade , Roberts would only say that the decision is“settled as a precedent of the court, entitled to respect under principles of stare decisis.”
    In his last round of questions, Democratic senator Charles Schumer of New York said the “fundamental question” facing the Senate and the public was: “What kind of justice will John Roberts be? Will you be a truly