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Home > Issues > John Roberts: Another Witless Slave to "Precedence"

John Roberts: Another Witless
Slave to "Precedence"
by Daniel Newby, August 12, 2005

Summary: Bush's supreme court nominee, John Roberts, certainly has a way with other peoples' words.  Are his views on conscience and "precedent" reasonable or dangerous?



1. John Roberts on Conscience & "Precedent"

2. Ramifications of Robert's Views

3. Tyranny of "Precedence" is Not New


1. John Roberts on Conscience & "Precedent"

Bush's nominee, federal appeals judge John Roberts, definitely portrays himself as the go-along, get-along type. In his own words at the 2003 confirmation hearing for his current judgeship:

"I'd have to say that I don't have an overarching, guiding way of reading the Constitution. I think different approaches are appropriate in different types of constitutional provisions... I'm going to follow both the decisions I agree with and the decisions that I don't agree with, regardless of any personal view."
Source: "Media continue to mis-cite Roberts's "settled law" comment to suggest his views on Roe v. WadeMatters," Media Matters for America, 7/21/2005.

"There's no role for advocacy with respect to personal beliefs or views on the part of a judge. The judge is bound to follow the Supreme Court precedent."
Source: "Nominee's views aren't clear in work representing others,"  Joan Biskupic, Toni Locy and Richard Willing, USA Today,  7/20/2005.

"Well, I will follow the lead of the Supreme Court majority in any precedents that are applicable there. And if Justices Scalia and Thomas are in dissent in those cases, I am not going to follow the dissent. I'm going to follow the majority."
Source: ibid.

Additional Roberts Quote: "I do have a history of litigating cases, and when you talk about the ability to set aside personal views and apply precedent without regard to personal ideology or personal views, thatís something Iíve been able to do in my practice. My practice has not been ideological in any sense. My clients and their positions are liberal and conservative across the board. I have argued in favor of environmental restrictions and against takings claims. I have argued in favor of affirmative action. Iíve argued in favor of prisonersí rights under the 8th Amendment. Iíve argued in favor of antitrust enforcement. At the same time, Iíve represented defendants charged with anti-trust cases. Iíve argued cases against affirmative action. And what I have been able to do in each of those cases is set aside any personal views and discharge the professional obligation of an advocate. And I would argue you look at cases on both sides. Look at the brief, look at the argument where I was arguing the pro-environmental position. Take a brief and an argument where I was against environmental enforcement on behalf of a client. See if the professional skills applied, the zealous advocacy is any different in either of those cases. I would submit to you that it is not. Now, thatís not judging, I understand that, but it is the same skill, setting aside personal views, taking the precedents and applying them either as an advocate or as a judge." (Source:  How noble.


2. Ramifications of Robert's Views

Did you catch that? Roberts just confessed that he did not possess any sense of guidance on how to read the constitution. Regardless of the issue, his admitted course as a lower judge was to blindly follow the "precedence" of the majority of persons who composed the "supreme" court ó his conscience notwithstanding. (But wait, without a guiding way to look at our once-constitutional republic anyway, a conscience really isn't relevant!)

If Roberts had no personal ability to interpret the meaning of the words written on the document that supposedly governs us all, of what use is he now, and what experience does he really offer? While he appears to be technically capable of "reading" the words on the document, he had nothing to personally offer on how those pretty words might have meant to those who came before him seeking justice.

Are we to believe that comprehension and the insightful art of interpreting language and intent only activate once one is elevated to the "supreme" court? When the "supremes" of this court are compared to those of the past, remarkable differences in both insight and interpretation are obvious. This crop has no qualm overturning past precedent whenever it suits them.

So when, precisely, did lower judges lose the independence and ability to oppose insights and interpretations of others in government service? Did the "supreme" court revisit Mount Sinai without our knowing and bring down a fresh set of tablets that only they can alter ó and to which all other judges and individuals are forever bound?

If the supposed wisdom of those who are "supreme" ó  or who made decisions in the past ó are beyond questioning, then why do we need people at all? Let's just plug in a computer with a few algorithms on past precedent and have it spit out the correct answer to every court case. We don't need to waste taxpayer dollars on people like Roberts who only regurgitate what was previously decided by others.


3. Tyranny of "Precedence" is Not New

Robert's witless slavery to the notion of "precedence" and to the "supreme" court was amply ridiculed over 200 years ago by American revolutionary Thomas Paine in Rights of Man, Part II, Chapter IV:

"Almost every case now must be determined by some precedent, be that precedent good or bad, or whether it properly applies or not; and the practice is become so general, as to suggest a suspicion, that it proceeds from a deeper policy than at first sight appears... This preaching up of the doctrine of precedents, drawn from times and circumstances antecedent to those events, has been the studied practice of the English government. The generality of those precedents are founded on principles and opinions, the reverse of what they ought; and the greater distance of time they are drawn from, the more they are to be suspected. But by associating those precedents with a superstitious reverence for ancient things, as monks shew relics and call them holy, the generality of mankind are deceived into the design. Governments now act as if they were afraid to awaken a single reflection in man. They are softly leading him to the sepulchre of precedents, to deaden his faculties and call his attention from the scene of revolutions. They feel that he is arriving at knowledge faster than they wish, and their policy of precedents is the barometer of their fears. This political popery, like the ecclesiastical popery of old, has had its day, and is hastening to its exit. The ragged relic and the antiquated precedent, the monk and the monarch, will moulder together. Government by precedent, without any regard to the principle of the precedent, is one of the vilest systems that can be set up...

"Either the doctrine of precedents is policy to keep man in a state of ignorance, or it is a practical confession that wisdom degenerates in governments as governments increase in age, and can only hobble along by the stilts and crutches of precedents. How is it that the same persons who would proudly be thought wiser than their predecessors, appear at the same time only as the ghosts of departed wisdom? How strangely is antiquity treated! To answer some purposes it is spoken of as the times of darkness and ignorance, and to answer others, it is put for the light of the world. If the doctrine of precedents, is to be followed, the expences of government need not continue the same. Why pay men extravagantly, who have but little to do? If every thing that can happen is already in precedent, legislation is at an end, and precedent, like a dictionary, determines every case. Either, therefore, government has arrived at its dotage, and requires to be renovated, or all the occasions for exercising its wisdom have occurred. We now see all over Europe, and particularly in England, the curious phaenomenon of a nation looking one way, and a government the other ó the one forward and the other backward. If governments are to go on by precedent, while nations go on by improvement, they must at last come to a final separation; and the sooner, and the more civilly, they determine this point, the better."

Judge Roberts and his government handlers can put that in their precedent pipe and smoke it.


Note: For additional information on judicial reform, see the Judicial Reform or Federal Tyranny sections of our Issues page.


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