Passing judgment The scramble to pigeonhole Supreme Court nominee John Roberts misses the point BY HARVEY A. SILVERGLATE

President Bush’s nomination of John G. Roberts Jr. to the Supreme Court has elicited more partisan noise than honest analysis of actual judicial decision-making.

The US Court of Appeals judge’s judicial philosophy is admittedly difficult to nail down, due to his active and varied legal career both in government and in the private sector. Until the last two years, when he wrote opinions as a federal appellate judge, lawyer Roberts helped clients and government agencies shape the legal strategies of their policy positions — positions that were not, necessarily, his own. As such, his personal legal-ideological paper trail is relatively short.

What we do know of Roberts, however, hardly offers ground for grim resignation among principled liberals. Rather, he is likely the sort of conservative influenced by real-life exigencies that cry out for deviation from rigid ideology. Not all of the candidates on President Bush’s short list were in this category. The execrable Judge Edith Jones, for example, concurred in an opinion that denied a retrial to a defendant whose court-appointed attorney slept through parts of a death-penalty trial. By contrast, Roberts looks to be cut from less rigid, more principled cloth.

RIGHT V. WRONG

History shows that, once on the Court, numerous politically right-wing justices have veered from their ultra-conservative credentials. Tough-on-crime prosecutor Earl Warren surprised President Dwight D. Eisenhower, who saw his appointee as chief justice lead a revolution in the rights of accused criminals. Harry Blackmun gave President Nixon apoplexy when he wrote Roe v. Wade, as did Lewis Powell Jr. when in the Bakke decision (1978) he cast the deciding vote in favor of race-based affirmative action. Three of President Reagan’s nominees — Justices O’Connor, Kennedy, and Souter — have crafted some of the Court’s most "liberal" opinions on everything from criminal justice to affirmative action, abortion to anti-sodomy laws.

The primary difficulty with understanding Roberts’s legal orientation lies in the slippery terminology — "conservative," "liberal," "strict constructionist," "literalist," "judicial activist," "originalist"— blithely tossed around to describe judicial decision-making, categories simultaneously meaningless and misleading. Judges are dubbed power-hungry enemies of democracy when they provide a check on legislative majorities, and enemies of limited government when they allow legislatures to draft laws with broad effect.

Some judges claim an obligation to read the Constitution literally in accordance with its original meaning. Yet an "originalist" who interprets the Constitution’s text to mean precisely what the drafters of the Fourth Amendment meant by proscribing "unreasonable searches and seizures" should have a nervous breakdown trying to figure out whether police may "search" the inside of a home with heat-sensor technology beamed from outside a solid wall. Does this even constitute a "search," much less an "unreasonable" one? The Court, with the support of "originalist" Justices Scalia and Thomas, ruled in 2001 that a thermal search required a court-authorized search warrant. And in another seemingly anomalous position taken by Scalia, he dissented from the majority’s lukewarm ruling last summer holding that accused US citizen "enemy combatants" were entitled to a watered-down military hearing that was hardly any protection at all. Charge them and try them in a court of law or else release them, demanded the conservative justice — a dissenting opinion joined by the avowedly liberal John Paul Stevens.

Another recent decision further exposes the failure of traditional labels in civil liberties cases. When the city of New London, Connecticut, sought to evict long-time residents from their homes so a wealthy developer could build a conference center, a hotel complex, condominiums, and an aquarium, a sharply divided (5-4) Court voted to affirm this use of eminent-domain power. The majority theorized that the development would produce more tax revenues than the residential properties and therefore was in the public interest. This commercial-interests-first, individual-liberty-second logic passed constitutional muster because most of the high court’s "liberal" members — Justices Stevens, Breyer, Ginsburg, and Souter — massed their clout against most of the "conservatives" — Justices O’Connor, Rehnquist, Scalia, and Thomas — with the latter seeking to uphold the little guy’s rights. As Stevens admitted in a recent speech, he thought this particular confiscation unwise and unjust, but he was wary of limiting the power of government to exercise the eminent-domain power which in the long run serves the public interest. But it is very hard to argue that the liberals were the populists in this case, rather than the handmaidens of the oligarchs.