Unsuited for the Supreme Court

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Last I'd heard, the New York Times online had gone paid subscription only, but I was able to access this piece with a BugMeNot password. It's a surprisingly positive article on John Roberts. [Hat Tip: Orin Kerr]

Along the way, it lists a really strange critique of Roberts from one of the liberal special interests groups. Roberts, when he was working for the office of the Solicitor General under the first President Bush, was assigned the task of writing some arguments for the administration's (entirely reasonable, in my opinion) view that religious expressions can play a role in public life, including government activities, as long as they aren't setting up a state religion or coercing religious activities. The Supreme Court at the time voted 5-4 against the government's case, which means the strongest minority possible agreed with the case Roberts was arguing. The article says the following:

Barry W. Lynn, the executive director of Americans United for Separation of Church and State, said Wednesday that Judge Roberts's participation in the case makes him "unsuited for a seat on the U.S. Supreme Court." He said that if confirmed to the court, Judge Roberts would "open the door to majority rule on religious matters."

Four members of the highest court in the land agreed with Roberts, and Lynn seems to think his mere involvement with the case makes him unsuited to occupy a seat on a court occupied by those four who apparently had a similar enough view. I'm sure he'd accept the conclusion that they were disqualified by their votes, but this is clearly not some extremist view that Roberts was defending. It lost by the smallest margin possible, one vote. I'm not sure how a certain interpretation of the law (in this case the Constitution), particularly a fairly common one, can disqualify someone from being on the Supreme Court.

I'm also not sure how this would open the door for majority rule on religious matters. As I understand what that phrase refers to, it would involve coercion. How would it be majority rule unless the majority is ruling? The view Roberts defended in that case explicitly rules out majority rule on religion. Lynn just hadn't bothered to pay attention to what the view says.

Besides, we don't know what Roberts' own view on the matter is anyway. He made the case for the Bush Administration's view because it was his job to make the case for that particular view. Lawyers make the best case they can make for the position they're hired to argue. We really don't know much about this guy's specific views based on what he did while working for the Solicitor General, simply because the views he was assigned to defend were not chosen by him. The following quote, from the same article, makes it utterly clear that Roberts was willing and able to argue for views that he almost certainly didn't hold:

"The English teacher used to talk about his papers after he had written them because they were outrageous but very well crafted," remembered John Langley, an emergency room doctor in New Orleans who was a class below Judge Roberts at La Lumiere. "He could take an argument that was borderline absurd and argue for it so well that you were almost at the point of having to accept his stance even though it was intuitively obvious that it was absurd."

This point isn't going to stop the groups like Lynn's (or those who want an in-principle ban on any restrictions to abortion) from making such ignorant statements. It's just going to reflect badly on them, though, when those who pay more attention point out how ridiculous this sort of comment really is.


I've never heard about the NYT going paid-only; that would be terrible.

I did year once that opinion columns are going paid-only, but that there's an RSS loophole. I haven't noticed, but I always access them via RSS.

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