Roberts Robes Himself in Pragmatism


By Lorraine Woellert For more than half a century, Congress has used its constitutional power to regulate interstate commerce as justification for everything from squashing state tariffs and restrictions on commerce across state lines to enacting labor and environmental protections. But that authority was thrown into doubt 10 years ago, when the Supreme Court struck down federal restrictions on carrying guns in schools.The reason: The high court declared that guns in schools had nothing to do with interstate commerce.

Gun-control advocates were stunned, but the real blow came a few years later, when the same court struck down part of the Violence Against Women Act on the same grounds.

PRECEDENT POLICY. Now, as congressional lawmakers dug into Day Two of confirmation hearings for John Roberts' nomination to be Chief Justice of the Supreme Court, they put the commerce clause front and center. Business was listening intently, as were activists on both ends of the political spectrum. The root question is this: Where does Roberts draw the line on federal power?

His answer was surprisingly equivocal: In essence, he told lawmakers it depends. But the full impact of what he said should make business -- and some liberal activist groups -- smile, even as it likely will alarm advocates of a strict "constructionist" interpretation of the Constitution.

Business doesn't give a whit about judicial philosophy. What it wants from the courts is consistency and predictability -- tools for planning in the short term. That's one reason Corporate America mourned the resignation of Sandra Day O'Connor.

PRECEDENT POLICY. Legal scholars may have scoffed at what they considered to be her philosophical inconsistency, but business lauded her pragmatism, and her deference to real-world situations that made their lives easier. Case in point: O'Connor's -- over conservatives' complaints -- for affirmative-action programs. Businesses could live with rules that they could anticipate and plan for. Likewise, many small vintners cheered in July, when the high court invalidated state laws that restricted out-of-state wine shipments, over strong objections from conservative members of the court.

If Roberts is true to his remarks on Sept. 13, business will get decisions like these in spades should he be confirmed as chief justice. Roberts signaled a deference to the legislative branch on turning the public will into law-making. "All judges are acutely aware that millions of people have voted for you and not one of them has voted for us," he said. Roberts also paid homage to the importance of legal precedent and the necessity of not enacting radical changes in law overnight: "It is a jolt to the legal system to override precedent."

EYE ON THE FUTURE. Then, sounding like O'Connor, Roberts dropped a bombshell on conservatives who believe in a narrow interpretation of the Constitution: "Judges take a more practical and pragmatic approach when deciding the rule of law," rather than sticking to a strict philosophy, Roberts said. "The Framers chose to use broad language [in the Constitution], and we should take them at their word."

Under friendly but persistent probing from Senators Charles Grassley (R-Iowa) and Orin Hatch (R-Utah), Roberts dismissed the "strict constructionist" and "textualist" approaches to constitutional law, which keep the powers of the federal government on a shorter leash. "I do not have an over-arching judicial philosophy I bring to every case," Roberts said. "I tend to look at a case from the bottom up." Then he hammered the point home again, to the consternation of Senator Lindsey Graham (R-N.C.): "The Framers were aware they were drafting for the future."

There's more than a philosophical debate at stake here. Where to draw the line on federal power gets to the heart of a host of questions, from regulatory issues that both please and antagonize business to social questions like limits on abortion. Roberts' embrace of pragmatism and flexibility in legal interpretations is anathema to constructionist conservatives, who see it as a coded indication of support for Roe vs. Wade, affirmative action, and other recent court decisions that looked more like compromises than strict adherence to original Constitution wording.

BUSINESS BALM. In effect, Roberts was telling the Senate that just because a right isn't spelled out in the Constitution doesn't mean that it doesn't exist. The Supreme Court, for example, first spelled out the right to privacy, the legal foundation behind abortion rights, in 1965 when it invalidated Connecticut's law against birth control in Griswold vs. Connecticut. "I agree with the Griswold court's conclusion," Roberts said.

That's not what the Right wants to hear. But it gives succor to the Left. "I was very comforted by that," says David Bookbinder, senior attorney for the Sierra Club. "The absolute last thing that the right wing wants to hear is that the Constitution means anything other than what it meant in 1789."

And it ought to please business, which has often sought out a single federal standard to trump a patchwork of 50 state laws. As Roberts says, "It's not the job of the courts to solve society's problems," it's the job of the legislature. And that's a place business can have some say in the process.

Woellert is a correspondent in BusinessWeek's Washington bureau


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