August 13th 2005

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Articles from this issue:

COVER STORY: BRAZIL: The slippery road to communist dictatorship

EDITORIAL: Australia's clean, green image at risk

CANBERRA OBSERVED: Howard Government's industrial relations pain

SCHOOLS: Subverting the English curriculum

NATIONAL SECURITY: Re-thinking Australia's response to terrorism

ECONOMICS: Ethanol and the national interest

CONSTITUTION: What is wrong with a Bill of Rights?

FAMILY LAW: Paternity fraud penalises the innocent

UNITED STATES: John G. Roberts and the US Supreme Court

STRAWS IN THE WIND: How to lose with a royal flush / Hard cases / Another 'bottom of the harbour' scheme? / Waste disposal

CINEMA: 'Vigilante justice' and movie culture

FORTHCOMING TOUR: The 'Mother Teresa of Africa' to tour Australia

Better way to help African poor (letter)

Clinical judgement on treatment of dying (letter)

Serious omission (letter)


BOOKS: NED KELLY'S LAST DAYS: Setting the record straight on the death of an outlaw

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John G. Roberts and the US Supreme Court

by Peter Westmore

News Weekly, August 13, 2005
President Bush's nomination of Judge John G. Roberts Jr as a justice of the US Supreme Court is expected to tilt the court, and ultimately the American legal system, towards a role as strict interpreter of the US Constitution, and reduce its legislative influence on American life, writes Peter Westmore.

President Bush's nomination of Judge John G. Roberts Jr as a justice of the US Supreme Court is expected to tilt the court, and ultimately the American legal system, towards a role as strict interpreter of the US Constitution, and reduce its legislative influence on American life.

In a prime-time, nationally-televised announcement at the White House, Bush said Roberts would "strictly apply the Constitution in laws, not legislate from the bench".

Paradoxically, this is likely to make both Judge Roberts' confirmation, and even the Senate vote on his confirmation, more politically contested.

Because of the virtual absence of libel laws in America for public officials, Senate confirmation hearings are frequently accompanied by campaigns of vilification which could not occur in Australia.

What makes the new appointment so significant is that for the past 40 years, the US Supreme Court has adopted an activist role, seeing itself as having a role in making law, rather than just interpreting it. This was behind the Supreme Court decision in Roe v. Wade, which effectively legalised abortion in the US.

Public opinion

Some justices have argued that the courts should be informed by public opinion, and even international opinion, in shaping their decisions.

Not surprisingly, Judge Roberts' nomination was attacked by the American Civil Liberties Union, gay groups, radical feminists and pro-abortion organisations which in the past have received favourable decisions from the Supreme Court.

He was trenchantly attacked by leading left-wing Democrat, Ted Kennedy, although his earlier appointment to the US Appeals Court was supported by several leading Washington Democrats.

Over the next few weeks, Judge Roberts' legal views, as well as his personal life and financial affairs will be subject to the most severe examination, as his enemies try to derail his confirmation by the US Senate.

One commentator even tried to determine his likely judicial role by looking at his stock-market portfolio, which must be put on the public record.

Reaction from Republican senators was strongly supportive. "He is a brilliant constitutional lawyer with unquestioned integrity," one Republican senator said.

The Republican Leader in the Senate, Bill Frist of Tennessee, issued a statement calling for confirmation proceedings that "treat Judge Roberts with dignity and respect". Echoing widely expressed views from a bitter struggle over the US President's Appeals Court nominees early this year, he called for a yes-or-no vote before the court's term begins in October.

Judge Roberts remains an enigma on issues of state versus federal power.

Dr William Watkins of the Independent Institute, a California-based legal studies centre, commented that "it is difficult to gauge Judge Roberts's stance on the New Federalism. He has no paper trail for his friends to tout or enemies to attack.

"Whether in private practice or working for the government, Roberts has served as one of the nation's foremost advocates. And an advocate simply makes the strongest arguments on behalf of his client.

"When he was confirmed to the DC Court of Appeals in 2003, Roberts made clear that lawyers must make arguments even if they disagree with them. If a lawyer failed to do so, Roberts noted, 'he wouldn't be doing his job'. Hence, the myriad legal briefs and memos Roberts has written over the years provide little assistance in evaluating his judicial philosophy."

Dr Watkins added, "Considering Roberts has served only two years as a federal judge, he has authored very few significant court decisions."

However, the one opinion that provides a glimpse into his attitude toward the New Federalism is Judge Roberts's dissenting opinion in Rancho Viejo, a case which concerned an order of the federal Fish and Wildlife Service directing a developer to remove a fence from his property to accommodate the movements of arroyo toads. A panel of the DC Court of Appeals upheld the order under the Commerce Clause of the US Constitution, but Judge Roberts urged that the entire Court rehear this issue.

He said that the protection of a non-commercial, local toad was not "commerce" subject to federal regulation. The activity being regulated (i.e., the erection of a fence) on private property did not, in Judge Roberts's opinion, substantially affect interstate commerce. Judge Roberts described the panel's reasoning as "inconsistent with the Supreme Court's holdings in United States v. Lopez" and other New Federalism cases. He feared that the panel's broad approach would destroy any real limits on federal power under the Commerce Clause.

Dr Watkins concluded that if his Rancho Viejo opinion is any guidance, he was "cautiously optimistic with the President's nominee".

  • Peter Westmore

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