What the Documents Say About John Roberts On Tuesday, the White House released 15,000 pages of memos written by Supreme Court nominee John Roberts. Our guests discuss what the newly available papers do -- and don't -- reveal about John Roberts.
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What the Documents Say About John Roberts

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What the Documents Say About John Roberts


What the Documents Say About John Roberts

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This is TALK OF THE NATION. I'm Neal Conan in Washington.

It's been a long couple of days for Supreme Court watchers here in Washington. On Tuesday, the White House released 15,000 pages of memos written by Supreme Court nominee John Roberts, and even as analysts, editorial assistants and operatives on both sides race to devour several forests' worth of printouts, the question remains about how much they really tell us about the nominee. All this material dates back to the Reagan administration when a young John Roberts served as a special assistant in the Justice Department, a relatively low-ranking position. Senate Democrats are much more interested in Roberts' documents from his later service in the administration of the first President Bush when he was the principal deputy to then-Solicitor General Kenneth Starr. The White House says those papers are protected under attorney-client privilege and will not be released.

For much of this hour, we'll focus on what these newly available papers tell us about John Roberts and what they don't. Later in the program, we'll mark the 40th anniversary of Medicare and Medicaid with some of the original players, and take a look at the significance of historic baseball milestones reached this past week: 3,000, 587 and 30.

But first, the Roberts papers. If you have questions about what we now know on issues like sex discrimination, bussing, separation of church and state and the power of the presidency, give us a call. Our number here in Washington is (800) 989-8255; that's (800) 989-TALK. And the e-mail address is totn@npr.org. With us here in Studio 3A is George Washington law Professor Jeffrey Rosen.

Nice to see you again, Jeffrey.

Professor JEFFREY ROSEN (George Washington University): Nice to be here.

CONAN: And also with us is David Savage, Supreme Court reporter for the Los Angeles Times. It's nice to have you back, as well.

Mr. DAVID SAVAGE (Los Angeles Times): Hi, Neal.

CONAN: And let me begin by asking how significant you think these documents are. We're talking about memos and letters written 25 years ago by a man then in his mid-20s. Jeffrey?

Prof. ROSEN: I don't know if this is the right analogy, but I'm struck by the fact that the Rehnquist confirmation hearings way back in 1971 also focused largely on memos that he had written as a Justice Department aide to President Nixon, and there was a lot of concern about inflammatory rhetoric and his sarcastic observations about the new barbarians among Vietnam protesters, and senators tried to predict his votes based on his expressed views in the memos. But as it turned out, once Rehnquist got onto the court, he did not fulfill the worst fears of his supporters and vote to overturn civil rights laws in the ways that he had advocated as a Justice Department lawyer.

So we certainly have to consider the different role that Roberts was playing here, and although they're relevant--there's a sign of his wit, the sarcasm of a young 26-year-old, which God knows many of us had at that age and would not want to revisit, and also his conservative inclinations, we shouldn't imagine that he'll just enact those views into law.

CONAN: David Savage, what do you think?

Mr. SAVAGE: There's less here than you might suspect. I went out there to the archives the other day and looked through a lot of those files. And there may be 15,000 pages, but only a very small number of the pages were actually written by John Roberts. They're like the files that I have in my office and you may have in your office, that is you collect a lot of paper. There are speeches, there are press releases. I looked in categories--like, there'd be a category `school prayer.' So I went and got the file, and it was some newspaper articles and the governor of Alabama had some school prayer bill and there was a decision from the Alabama courts about it. In other words, it was not John Roberts on school prayer.

CONAN: Mm-hmm.

Mr. SAVAGE: And the same thing with the civil rights files. He'd collected a lot of material, but very little of it was about John Roberts. There were occasionally little notes in the margins that he wrote, sometimes sort of funny little witticisms. He seemed to have the generally conservative views that you might expect of a young Reagan administration lawyer, but I don't think there's much to be learned there.

What's interesting, as you alluded in the opening, is from '89 to '93, he was the top deputy to Ken Starr, and they were really pushing a legal agenda in the Supreme Court on abortion and religion and environmental protection, big issues. And the White House position is, `We don't want you to see any of the files or papers he wrote during that period, but you can take a look at these 15,000 pages when he was a 26-year-old.' And I think that's probably a shrewd strategy on their part.

CONAN: Well, Jeffrey, let me ask you--David did mention that he does come across as a young conservative, very much the Reaganaut, if you will. This comes across in many different contexts.

Prof. ROSEN: It does. Some of the contexts that have gotten the most attention are bussing, for example, where he seemed to challenge the view of Ted Olson, no liberal slouch he, the later solicitor general, who had argued that Congress had no power to prohibit courts from ordering bussing. And Roberts scrawled `No!' in the margin, and he said, `Real courage would be to read the Constitution as it should be read, not kowtow to the Tribes, Lewises and Brinks,' referring to Laurence Tribe, the Harvard law professor, and Tony Lewis, The New York Times columnist. And then he said he thought Olson had read the cases too broadly.

So this is interesting for a number of reasons. First of all, it does give you a sense of the unvarnished young man. Unlike in the solicitor general's office, where he had to represent the administration's positions, this was just his gut reaction to the question of the bussing. Now the bussing memo, like most of the memos, are all legally plausible. He didn't take any radical position that was impossible to reconcile with existing law. In some of the memos, he's actually quite strategic and modest. He suggests, for example, if the administration sides with black parents who are challenging a religious college that wants to discriminate on the basis of race, it can do so on a procedural way that will avoid attracting the press but will also allow us to move the law in an incremental way. So you really see the chesslike mind at work in a way that's quite relevant to the work of a Supreme Court justice. But that was a case where he was more acting as a strategist than an ideologue. I was just generally impressed by his intelligence, the sarcasm and certainly the conservative instincts.

CONAN: There are also comments, David Savage, on issues like--that are still alive in the courts, very much so: affirmative action.

Mr. SAVAGE: Yes. In a number of the memos, he referred to affirmative action quotas. I think he had quite a conservative position on that. It was the Reagan administration position. It's the position of four members of the current Supreme Court, which is that the government may not use race as a decision-making factor. He was very much of a skeptic about affirmative action. And it should be noted when he takes a seat, or if he takes a seat, as the ninth justice, they're very closely split on that. Justice O'Connor was the fifth vote to allow college affirmative action all around the country; the four others would have said it's unconstitutional to use race. So that's an area where he could have a big impact.

CONAN: Mm-hmm. Sex discrimination another issue where he was careful.

Mr. SAVAGE: There was a debate in the early '80s about whether private--whether universities had to fully comply with the anti-discrimination laws. Suppose you're private university, like Grove City College up on Pennsylvania, and you don't get federal funds, but some of your students get federal aid. And the question was: What if that university or that college doesn't have an adequate program for women athletes? You know, are they violating Title IX, or do they not have to comply with the sex discrimination law because they're not a federally funded university? He took the narrow view, which many conservatives took. This was a long fight, and eventually Congress amended the law and said the colleges and universities have to comply if any of their departments get federal money.

CONAN: And his argument was the argument could only go as far as the money goes. If this department got money, they would have to comply.

Mr. SAVAGE: That's right. That's right. Your sports team is not getting federal funds, so they don't have to comply with Title IX. That was his argument.

CONAN: By the way, if you'd like to join the conversation about the documents of John Roberts, what we've learned from them, about the battle over them, our number is (800) 989-8255; (800) 989-TALK. The e-mail address is totn@npr.org.

Jeffrey, the hot-button issue is, again, going to be the issue of abortion. Do we learn anything about his opinions on abortion anywhere in this?

Prof. ROSEN: There was a little hint. There's a conference discussing the bussing bill that we've already discussed.

CONAN: Mm-hmm.

Prof. ROSEN: And Roberts cites Antonin Scalia, who's then a University of Chicago law professor. Scalia had said that non-uniformity in the interpretation of federal law could be criticized as sloppy, but then he said, `Compared to what? Given the choice between non-uniformity and the uniform imposition of the judicial excess as embodied in Roe v. Wade, Scalia's prepared to choose the former.' Now Roberts seems to cite this approvingly, suggesting that it would be better to have some diversity among the states than the sloppy Roe decision. But this is certainly reading tea leaves; it's several points removed. We do get a little glimmer of that right there.

CONAN: And isn't there at one point a conversation about one of the then justices sitting on the court and pointing out that there was a majority appointed by Republican presidents and that this was a fairly conservative court, and he then circled the name and drew an arrow to the word `abortion'?

Mr. SAVAGE: Yes. Well, certainly Harry Blackmun didn't turn out to be the Republicans' idea of a conservative justice. He's certainly an advocate of judicial restraint and an opponent of judicial activism. That is he thinks the Supreme Court should not strike down laws, should be very deferential to the states. So Roe vs. Wade was always the classic, you know, bad decision if you're somebody who believes in judicial restraint, because on a very, you know, limited constitutional basis, they struck down all of the abortion laws. So I don't think there's any--I don't have any question that he thinks that was a mistaken decision when it was made. What we don't know is whether he will push hard to overturn it now.

CONAN: Mm-hmm. Jeffrey.

Prof. ROSEN: We also don't know his views about judicial restraint when it comes to congressional power, which is something that the Democrats are extremely concerned about. There are little hints here and there. He did argue that Congress had the power to strip lower courts of jurisdiction about school prayer cases, which is interesting and controversial. But when it comes to the invasion of Grenada, he seemed to suggest that the president had inherent authority to invade without explicit authorization from Congress, suggesting he's a real executive power guy. So little bits of tea leaves here, but there's no indication one way or the other that he shared Chief Justice Rehnquist's view, for example, that, you know, Congress generally have a narrow view of congressional power.

CONAN: Mm-hmm. And it's important to remember that in the job that he had then, he was not making policy, nor was he--he was basically an advocate or seeking to get the Justice Department to take some of the cases and take some of his points of view.

Prof. ROSEN: He was. Although it's an interesting question, isn't it? We can think together about whether a young kid circling Blackmun and saying `abortion' and saying `No!' impulsively is a better window onto his instincts than his more considered views as deputy solicitor general where he's constrained by the Bush administration. And this is very relevant because there's going to be a long discussion about his views of previous Supreme Court precedents and how much he'd be bound by them. But in the end, as a justice, everyone agrees that your instincts, your gut, very much determines the ultimate scope of your jurisprudence, so these are interesting windows onto that perhaps.

CONAN: There is an interesting point in one of the memos. On his first day on the job, in fact, he was assigned to help Sandra Day O'Connor prepare for her confirmation hearings and wrote: `The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court but demonstrating in the response a firm command of the subject area and an awareness of the relevant precedents and arguments,' a position that he may fall back on when he comes to his own hearings before the Senate Judiciary Committee next month, maybe the next month after that.

We're talking with Jeffrey Rosen of George Washington Law School and with David Savage, Supreme Court reporter for the Los Angeles Times. When we come back, we'll take your calls on what we know now about John Roberts, the Supreme Court nominee, what these documents are telling us and about what's left out there to find out. Our number is (800) 989-8255. You can also e-mail us: totn@npr.org.

I'm Neal Conan. It's TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

On Tuesday, the White House released thousands of pages of documents from early in Supreme Court nominee John Roberts' career at the Justice Department back in the Reagan administration. While the documents paint an interesting picture of a young nominee, much still waits to be learned. We're talking this hour about the Roberts papers. You're invited to join the conversation. If you have questions about Roberts' precedents on various issues, give us a call at (800) 989-8255. E-mail us: totn@npr.org. And by the way, for all of our coverage of the Roberts nomination, including past appearances before the Supreme Court and analysis of his prospects for confirmation, you can go to our Web site at npr.org.

Our guests are Los Angeles Times Supreme Court reporter David Savage and Jeffrey Rosen, law professor at George Washington University. And let's get a caller on the line, and this'll be Lee, Lee calling from Truesdale, Missouri.

LEE (Caller): Yes. Hello, everyone.

CONAN: Hello.

LEE: My question about the guy is how rigid, how resentful and how obedient will this guy be to the Bush administration? Because I assume that's what he was chosen for. And I also assume that the Bush administration does not want any surprises with their judicial nominations.

CONAN: Everybody hates surprises in these things. David Savage.

Mr. SAVAGE: It's a good question, and we don't know the answer. We don't know how rigid he is. We know he's a conservative guy. As we've just been discussing, he's been clearly a conservative guy since his mid-20s. But we don't know how rigid he is. And I think that's, to some degree, what we, you know, at best hope to learn over the next month, because this seems to be one of these cases where his confirmation is really not in grave doubt. There are 55 Republicans who almost surely will vote for him and maybe a good number of Democrats, but I think it's possible we will learn a lot more in the next month sort of who is John Roberts and sort of what's the country getting for the next 30 years.

CONAN: Yet he still does have some minefields to walk through, Jeffrey.

Prof. ROSEN: He does. And I like the caller's litmus test: rigid, resentful and obedient. That's the question we should all be focusing on. We have little clues here and there. On rigidity, he has said that he is not a constitutional originalist in the manner of Justice Scalia. He does not have a grand theory; he prefers to approach cases from the ground up. So that might be a good sign against rigidity. As for resentful, many people have noted that he seems to lack the anger of Justices Scalia and Thomas, perhaps generationally. They were a bit older generation of conservatives traumatized by the '60s. He went to school in the '70s after the riots at Harvard and doesn't seem to have the chip on his shoulder that they do. As for obedience, your third standard, I guess we'll see, and certainly the confirmation hearings will reveal a lot of that.

CONAN: Lee, thanks very much for the call.

LEE: Sure. Have a nice day. Bye.

CONAN: Bye-bye.

Let's talk now with David, David calling from Spokane in Washington.

DAVID (Caller): Thank you very much. I was curious, do any of the documents point to a conservative organization, and I don't remember which one it was that he was supposed to belong to? He said he forgot or he didn't remember if he was or not, and then it came out later that he was a member of the Steering Committee. Did any of the documents point to that at all?

Mr. SAVAGE: No. No. I don't even think the Federalist Society was around back in 1981, '82. You're right to remember the discussion recently about his membership or non-membership in the Federalist Society, but we don't really--there's nothing to be learned in the '81-'82 period regarding that.

DAVID: Well, my memory is not that good. I mean, the way I heard it was that he had said that he did not remember and then it was revealed I guess a day later on the news that he was actually on the Steering Committee, that he had said earlier that he did not remember being a member of that.

CONAN: Jeffrey.

Prof. ROSEN: I have to say--certainly it's important whether or not the White House was forthcoming, but there might be less to this conspiracy than meets the eye, only because the Federalist Society is a sort of loose organization that law students tend to join. You don't get a membership card as you do when you join the ACLU, and he might have participated in some conference on the Steering Committee without having remembered it or thought that he had signed up about it. So it's almost more interesting as a window onto the confirmation process that he and the White House felt compelled to deny membership in what's, after all, a fairly benign and rather ecumenical organization rather than a sign of the Trilateral Commission at work.

DAVID: Thank you very much.

CONAN: Thanks for the call, David.

DAVID: Thank you.

CONAN: As we mentioned earlier, there are documents still out there that members of--that Democrats on the Judiciary Committee are still asking about. They also are submitting--giving him a questionnaire, some of which will be public information, some of which will be private information held by the committee; you're guaranteed to being skeptical about how private that's going to be, but anyway--seeking information about, among other things, his role that he may have played with the Republicans in the Florida recount back in the case of Gore v. Bush.

Prof. ROSEN: That's right. What we now know is that he was recommended by Chief Justice Rehnquist, his boss, as one of the best Supreme Court advocates of his generation, and it was for that reason that Florida Republicans sought out his advice. Now he's minimized his contribution. He said he went down on his own dime and provided very informal advice. Certainly, there were lots of Republican lawyers going down to do pro bono work, as they saw, it back then. But Democrats are hoping that perhaps documents will reveal that his involvement was more extensive and this might be used to embarrass him.

CONAN: David Savage, the documents we're talking about today, the ones that were released back in the early '80s, Democrats are interested more in the documents from about 10 years after that, in the administration of the first President Bush when he was a deputy to then-Solicitor General Kenneth Star.

Mr. SAVAGE: Yes. I think anything about that era is going to be very interesting. That's really where the hearings probably should focus, because that'll, I think, really tell us more about John Roberts' substantive years if we're going to learn any. Take, for example, in the spring of 1992, the Supreme Court had a Pennsylvania case involving some abortion regulations. The state of Pennsylvania urged the court to uphold these regulations, and they were, you know, 24-hour waiting period and a requirement that a woman notify her spouse before having an abortion. The state of Pennsylvania said these regulations don't ban abortion; they should be upheld.

Ken Starr and the solicitor general's office jumped into the case to say, `You, the Supreme Court, should overturn Roe vs. Wade entirely and say that human life should be protected inside and outside the womb,' one of the most compelling state objectives, they said, `and that that right outweighs the woman's right to have an abortion at all stages of the pregnancy.' So it was a very strong brief.

Now I think what would be quite interesting to know is: Was that the White House position and the solicitor general's office was just carrying it out, or was it a position that sort of bubbled up from the two or three or four conservative attorneys who headed that office, including John Roberts? And it would be interesting to know whether Roberts agreed with that position or thought maybe that he wasn't--he was really going along with what Starr wanted.

CONAN: Mm-hmm.

Mr. SAVAGE: So I think the senators no doubt will ask about that, but they'd very much like to know if there are any--if Roberts wrote anything saying, `We should or should not do this particular approach in this case.'

CONAN: Jeffrey, let me ask you. These documents that were released--he was working for the Justice Department effectively as an administration lawyer. If they're not covered by attorney-client privilege, why are the later documents--might they be covered by attorney-client privilege?

Prof. ROSEN: Very good. Obviously, an important question. And the response that the White House has is that even Democratic solicitors general, such as Walter Delinger, a very distinguished Clinton appointee, have opposed the release of the SG's documents on the grounds that you couldn't have open debate. If young staffers knew that their advice to the solicitor general would be exposed, their deliberations would be cramped. And just as Supreme Court justices rely on clerk confidentiality to have free and open debates, they're concerned that the entire integrity of the office would be challenged if these documents were released. This debate came up during the debate over the nomination of Miguel Estrada, who worked in the solicitor general's office. The same arguments were made; the Senate didn't get the memos then. They'll try now, but I have to say that I have some sympathy to the privacy argument here just because the traditions of the office are very much in favor of open debate, which might be chilled if these memos were released.

CONAN: Let's get another caller on the line. This is Alan, Alan calling from Washington, DC.

ALAN (Caller): Yes, hi. I know that, you know, we've seen with some of the judges in the recent past that it was pretty clear how they were going to think. But I'm thinking going back 50, even 100 years, is there really any consistency in their writing, particularly in their 20s and 30s, and how it pertains to how they voted? I mean, you mentioned Blackmun as one that didn't turn out. I believe that we've seen a number of judges over time that were picked by conservative presidents and turned out to be more liberal than anybody every thought would be possible. How much does this really help?

CONAN: Jeffrey.

Prof. ROSEN: It's a great question, and I think it all depends on the judicial philosophy. Some judges, when they're appointed to the court, are committed to an ideology or a philosophy that doesn't allow for much movement. `I'm not evolving,' Clarence Thomas famously said, and he embraced a doctrine of originalism that led to not much evolution. By contrast, Felix Frankfurter, once he joined the courts, surprised the people who appointed him because he'd been a civil libertarian liberal; he turned out to be a devotee of judicial restraint. There was a difference between his constitutional and political views.

I've been struck, when you look at recent confirmation hearings--Souter, Kennedy and O'Connor--how consistent they were. Souter basically told us that he was a common law constitutionalist whose hero was the great moderate, Justice Harlan. Kennedy said he was a libertarian who believed in autonomy. O'Connor made clear that she really was a former legislator who approached things like a former politician. In some ways, if we just have the wit to listen to what people actually say about their philosophy, we may be in better shape. And that's why, even more interesting than the memos, might be asking Roberts, `OK, you say you're not an originalist, you don't have a grand philosophy. What is your approach to the Constitution?'

CONAN: David Savage, do you see evidence of flexibility of mind, where he's changed his mind?

Mr. SAVAGE: Well, I see a lot of evidence that he had fairly conservative views. And the reason that's important--I think it is a great question--because I think it really depends on the person. If you look at Bill Rehnquist's writings in his 20s, he was a person who had very strong, very clear, very conservative views. His memos were exceptionally confident in his view of the law. If you look at what Harry Blackmun wrote in his 20s and 30s and 40s and 50s, he had no particular strong legal views; he came to the Supreme Court really not having any particular views. And yet people say he changed when he was on the court, but it's partly because he had never thought about questions like abortion. So I think what we can take from John Roberts is he's a guy who's got very strong conservative views. He is, as Jeff said, somebody who doesn't espouse any all-encompassing doctrine or vision. And so, therefore, I think there's at least a good reason to think that he will be somewhat flexible when he's faced with these issues on the Supreme Court.

CONAN: I suspect we'll be revisiting some of these conversations later as this process continues. As always, thanks to you both.

Alan, thank you very much for the call.

Thanks to our guests Jeffrey Rosen of George Washington University's Law School, and David Savage, Supreme Court reporter for the Los Angeles Times. They were kind enough to join us here in Studio 3A.

Senators at Roberts' upcoming confirmation hearings will most likely be very interested in his views on stare decisis. That is whether Roberts considers the court's previous decisions to be settled precedent, or is he willing to overturn older rulings in favor of his own interpretation. Michael Gerhardt, a law professor at the University of North Carolina at Chapel Hill, joins us now to talk more about precedent. He's with us from the studios of member station WUNY there in Chapel Hill. Nice to have you on TALK OF THE NATION.

Professor MICHAEL GERHARDT (University of North Carolina at Chapel Hill): Thanks for having me.

CONAN: For those of our listeners who may not be familiar with the legal process, how does stare decisis work?

Prof. GERHARDT: Stare decisis is a Latin term that stands for `let the decision stand.' And it's basic to the American legal system and it's also basic to American constitutional law. The basic idea is that the Supreme Court ought not to be overturning or overruling its prior decisions all the time. Instead, in order for the court to be consistent, in order for there to be stability and continuity in constitutional law, the Supreme Court has got to let stand sometimes, if not oftentimes, its prior decisions, even if the justices think that they might be wrongly decided.

CONAN: Yet the court does reverse itself from time to time.

Prof. GERHARDT: Yes, the--roughly speaking, in American history, the Supreme Court has reversed itself about 160 times in constitutional cases but there's--and the critical thing to understand about that is that every time the court hears a case, justices might well confront prior decisions with which they disagree. It's at that point that a justice has to ask himself or herself `OK, do I follow the prior decision? Do I somehow find a difference here or do I simply confront it head on and ask my colleagues to overturn it and go a different way?'

CONAN: We're talking about the concept of stare decisis with Michael Gerhardt, a professor of law at the University of North Carolina at Chapel Hill.

You're listening to TALK OF THE NATION from NPR News.

In the hearings that now Judge Roberts was subjected to in the Senate, when he was up for his federal judgeship, a couple of years ago, he was asked about the issue of abortion and he said, `Well, abortion is settled law.' Was that stare decisis?

Prof. GERHARDT: That was stare decisis for Roberts at the time. The critical thing to keep in mind is that his prior confirmation proceeding involved his nomination to a lower federal court, and lower federal court judges are generally bound to follow the decisions of a higher court, namely the Supreme Court. The critical thing here, of course, is that Roberts is being nominated to the Supreme Court where justices are free to reconsider prior decisions and are not bound by lower court decisions. There are no--and they're not bound by local or higher court decisions. They are the highest court. So Roberts will have a degree of liberalization here, in a sense, to be himself. And that's the critical question. What--OK, who is he? What will he do?

CONAN: Now--and Attorney General Alberto Gonzales recently said, `Hey,' referring back to that testimony, again, that was for a lower court. Once you're on the Supreme Court, then you're free to change your mind.

Prof. GERHARDT: Exactly, and this is why even the prior memos become relevant. Presumably Roberts was nominated because he fit the president's criteria. And the president's criteria, essentially, had to do with whether or not he was in the mold of Justice Scalia or Justice Thomas. Well, those are the two justices, Justice Scalia and Justice Thomas, who called for, or urged, their colleagues to overrule more precedence than any other sitting justices do. So they're at great odds with prior decisions of the Supreme Court and they make their disagreements known. The question then for Roberts will be: OK, do you think you're in the mold of Scalia or Thomas, and will you have a similar attitude toward prior decisions as they do? And their attitude, generally, seems to be if they disagree with something, they might tend to ask their colleagues to overrule it, rather than to follow it, or even to distinguish it.

CONAN: How does that then get into this concept that we've heard so much about, usually from the conservative side, complaining about activist judges?

Prof. GERHARDT: It gets into the notion of activism partly based on what we think activism is. Activism might be a tendency to overrule Democratically elected laws or actions. But activism also might be substituting your preferences for those of a Democratic legislature, and one of the things that justices sometimes don't agree on is whether or not they're activists. And some of them might take the position that it's not--that the appropriate approach is judicial restraint. And judicial restraint means to follow prior decisions even to defer to legislative enactments. Other justices, such as Justice Scalia and Justice Thomas, might say no, we've got to displace what we think are the activist decisions and they think those decisions date back to the 1930s involving progressive economic regulations, and, even more recently, in terms of decisions of the Supreme Court, like Roe vs. Wade.

CONAN: Well, the position he's being nominated to fill is that of Sandra Day O'Connor. And she was often the swing voter in a lot of issues. Supreme Court often decides 5-to-4. Was she--how did she go on stare decisis?

Prof. GERHARDT: She followed what you probably could describe as a classically conservative approach. She tended to be deferential to the court's prior decisions. In other words, she was not looking for ways to overrule prior decisions, but instead she was finding ways, either to follow them or to differentiate them. She did join in overruling some prior cases, but she tended to not prefer to go that direction. The critical thing, as you just point out, is that Justice Roberts, or Judge Roberts, would be replacing Justice O'Connor, who has been the person in the middle of the court. You've got four justices leaning to the left, four justices leaning to the right. The person who takes her seat will determine the balance of the court, which way it leans, left or right, and that means dealing with prior precedent, particularly liberal precedence, landmark liberal precedence, and perhaps overruling them.

CONAN: Michael Gerhardt, thanks very much; we appreciate your time.

Prof. GERHARDT: Thank you.

CONAN: Michael Gerhardt at the University of North Carolina at Chapel Hill.

When we come back from a short break, Medicare and Medicaid turn 40.


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