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Chief Justice John Roberts Emphasizes Importance Of Independent Judiciary

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Tuesday October 31, 2006

By Ed Barna

   John G. Roberts, Jr., who accepts few speaking invitations, came to Middlebury College last Wednesday in large part out of respect for his  mentor as a beginning law clerk 26 years ago: William H. Rehnquist, his predecessor as Chief Justice of the Supreme Court.

    Before Roberts gave the annual Fulton Lecture in the Liberal Arts--in which he outlined Rehnquist’s life and extracted principles and lessons--College President Ronald D. Liebowitz announced that two anonymous donors had established a Justice William H. Rehnquist Professorship of American History and Culture. History professor James R. Ralph, Jr. will hold that chair first, he said.

    Though no Supreme Court Justice has come from Vermont, Rehnquist came closest: he chose to spend his annual two months of relaxation and reinvigoration in Greensboro, Roberts would later note. Nancy (Rehnquist)  Spears, one of his daughters and now wife of Dean of the College Tim Spears, was quoted in a release as saying “This gift is a wonderful tribute to our father, who not only greatly enjoyed his visits to Middlebury College, but also was a passionate student of American history.”

    Mentoring was the order of a day very much oriented toward the undergraduates. Roberts went to two classes, and the students he talked with there had seats onstage with him, while reporters and photographers were assigned to Mead Chapel’s two back rows. After the last question was answered, Roberts went to the student center for a students-only reception.

    But those looking for insights into future Supreme Court actions found, by evening’s end, that the description of Rehnquist’s life doubled as a  background for many of Roberts’ later responses to more topical questions. Interest was intense: Mead Chapel reached its capacity of more than 700, and two video-linked locations also drew crowds.

    Among critics of the current Presidential administration, one of the greatest concern is that politically oriented appointments to the Supreme Court may greatly weaken its historic role of checking and balancing the legislative and executive branches. In his answers to questions, Roberts seemed to convince many--as he did during his confirmation hearings--that he is a firm believer in legal precedent, rational decision-making and judicial independence, rather than being a “true believer” in any set of political or religious tenets.

    Which is not to say that everyone went away satisfied. A demonstration on the steps of Mead Chapel (which ended at the event’s 8:15 p.m. starting time rather than being disruptive) united students, faculty members and community activists in opposing the Supreme Court’s not granting War on Terror detainees the same rights as others, and included vocal women’s rights supporters.

    “No one is free when others are repressed,” “Justice and equality for all,” and “Our bodies our choice,” said three of the placards. “This is not a Halloween costume--made in the USA” said the sign for one of the hooded and chained and wired figures who represented tortured prisoners.

    When Roberts was asked about clashes between U.S. law and international law, he asked back, “Which country?” England and France don’t exclude illegally seized evidence from court the way we do with the 4th Amendment, he said. If people are talking about the Geneva Convention or any of the many other international protocols, “I don’t have the authority to impose those,” he said.

    One of the most thoughtful criticisms came after the event, from student Nick DeSantis, who was aware of how “postmodern” thinking in fields like history, anthropology, literature and more has emphasized the impossibility of complete objectivity. Personal biases, limitations of perspective, and power structures’ influences on media of expression need to be deconstructed, say proponents. DeSantis said that in that light, it was illogical for Roberts to say the Supreme Court could rely on logic and precedents to make nonpolitical decisions.

    However, Roberts also made it clear that he viewed the precedent-oriented way of making Supreme Court decisions as a major change, an act of independence on the court’s part, with Rehnquist showing his stubbornly independent-minded personality in leading that transformation. At first Rehnquist was alone in his way of thinking, often writing minority dissents, but in the end he presided over a court with a similar alignment, Roberts said.

    The current Supreme Court is composed entirely of members who had previously been Appeals Court judges, Roberts observed. That is a real break from the past, he said. Forty years ago, when Rehnquist was appointed, the court’s written opinions were “free-ranging;” but “when he left the court, they were more about law--which is what I think they should be.”

     Early in the nation’s history, the Supreme Court was weak in comparison with the Presidency or Congress, Roberts said. When the District of Columbia became the nation’s capital, the Congressional building was constructed first, then the White House, then...the Patent Office. It wasn’t until 1935 that the Supreme Court emerged from the Capitol Building’s basement, he said.

    The shift began with Chief Justice John Marshall, who broke with the English precedent of all Justices writing opinions in a case, and insisted that there be an opinion of the court as a whole, Roberts said. With those sharings of thoughts and exchanges of writings and mutual deliberation to find an authentic basis for decisions came, gradually, more respect.

    Sometimes very slowly, Roberts said. When an Indian nation with a written language and a constitution successfully appealed in the Supreme Court to stop a Georgia lottery of Indian lands and gold rights, President Andrew Jackson declared, “John Marshall has made his decision; let him enforce it now if he can.” That quotation can be found on a sign along the nationally designated “Cherokee Trail of Tears: 1838-1839.”

    The courts can’t do everything people want, Roberts said. For that, there is the legislative branch, to which the country will elect representatives in a few days. “Most people in the world don’t have that right,” he said.

    But Roberts insisted that judicial independence is critical to our system of laws, something the nation’s founders regarded as a more important constraint on executive power than the language of the Bill of Rights. Read the former Soviet Union’s constitution and it sounds like they had a democracy, but since there was nothing comparable to our court system, those supposed rights were meaningless, he said.

    “This is the greatest challenge for emerging democracies,” Roberts said. “Sometimes getting to a free election is the easy part. What’s hard is establishing an independent judiciary that can enforce the rule of law.”

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