by Matt Barr

Roberts' rules

I suppose you're wondering what I think about the nomination of Judge Roberts. (Beyond the most important thing!) Earlier this month I said, "Me, I want a good Justice, and wish none of this political calculus were involved." By "political calculus" I meant what would be necessary for a nominee to do and, more importantly, to be to be confirmed by the Senate. But I'll stand by it in its broader meaning, too, and say: Judge Roberts, by all accounts, should be an outstanding Justice, setting aside which way he may or may not "tilt" the Court. I think he'll serve America well, and am happy he's been nominated.

That said, there are important indications beyond Sen. Schumer's [UPDATE: Metaphor alert!] trolling for ammo he doesn't have to try and smoke Roberts out that Roberts will approach the Constitution and Court in a way favorable to textualists and limited government fans. Prof. Kerr points to a transcript from a roundtable on PBS NewsHour in 1997 on the subject of the Supreme Court that Roberts participated in. He said in part, asked whether he thought the Court then was "conservative":

Well, I think it's a moderate court but one that is very serious about the limits it sees in the Constitution, whether it's the limits on Congress, limitations on the federal government, or limitations on the court, itself. And if it's a court that doesn't seem so warm and embracing of theories that are popular on the law school campuses, I hope the other members of the panel will forgive me for not thinking that's a serious flaw.

Emphasis added. The unscripted, offhand nature of the comment is a better indication, probably, than anything he's said the last two years in D.C. Circuit opinions of his constitutional philosophy.

Prof Althouse is reading Judge Roberts' opinions, and came across this passage:

It was a close thing, but Benedict Arnold's bold plan to capture Canada for the Revolution fell short at the Battle of Quebec in early 1776. As a result, the Federal Energy Regulatory Commission must now decide when affiliates of Canadian utilities -- utilities not subject to FERC jurisdiction -- may sell power at market-based rates in the United States.

The introduction to this dryest of matters is positively Scalian. You can't infer Scalia's overall confidence and boisterousness in opinion writing from that single passage, but it shows a nimble mind, studied in history, engaged by the frankly dullest of cases. These are good traits.

Prof. Althouse is nearly apologetic in her wish for a Justice who writes interesting, engaging opinions, but she shouldn't be. Beyond being fun to read, opinions with "personality" show not just a nimble mind, but also that the Justice himself is the intellectual force behind the opinion, and not (or, to a lesser extent) his clerks, and not other Justices (or their clerks). On reading most Scalia opinions -- and majority opinions are different, in that they are Frankensteined by several Justices' clerks, as a condition or consequence of the Justice's vote -- you aren't left with the opinion he's delegated the work and signed whatever was put in front of him, are you? That too is an exceptionally good thing. Here's hoping Roberts, whatever his "politics," is like that.

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