Roberts has it both ways on judicial usurpation

Ol’ John Roberts is sure some piece of work. Consider, for example, the way he’s won the support of conservatives by claiming to oppose the judicial usurpation of legislative powers. In an exchange with Sen. Lindsay Graham last week before the Senate Judiciary Committee, Roberts spoke about what the Reagan revolution meant. In the context of this discussion, Roberts is stating the positions of the Reagan revolution as his own:

GRAHAM: When it comes to the law, what does the term Reagan revolution mean to you?

ROBERTS: I think it means a belief that we should interpret the Constitution according to its terms; that judges don’t shape policy; that judges interpret the law and that legislators shape policy; that the executive branch executes the law.

Sounds pretty good, right? But now read about another statement Roberts made before the Judiciary Committee last week, concerning his reasons for supporting the Grutter decision, as reported by the Los Angeles Times:

Roberts expressed support for portions of a 2003 opinion by Justice Sandra Day O’Connor upholding the rights of state universities to consider race in making admission decisions. Roberts said it was proper for the court to take note of the positive effect of racial and ethnic diversity in the military when it upheld an admissions policy at the University of Michigan Law School.

“You do need to look at the real-world impact in this area,” Roberts said.

So, in the same hearings in which Roberts forthrightly affirmed the fundamental constitutional principle that legislators enact the law, executives execute the law, and judges only interpret the law passed by the legislature, he also said that judges have to consider the “real-world impact” of their constitutional interpretations, i.e., he said that judges must legislate. If it is found to be advantageous (advantageous to liberal society, that is) to have proportional racial diversity in the military officers’ corps and in state-supported graduate institutions, then judges must re-write the Constitution to allow for racial preferences. Judges, in short, are policy makers, the very thing he told Graham they should not be.

And conservatives, to their everlasting disgrace, are supporting for Chief Justice of the United States this transparent Beltway manipulator, this legal technician, this liberal.

Posted by Lawrence Auster at September 18, 2005 10:59 PM | Send