The Brief on Judge Roberts

I have to admit that I was fooled by the Cleaver family images displayed by the Roberts family that sultry July night. Not a bad guy, I thought. Doesn’t look like a Scalia. Doesn’t talk like a Scalia. Maybe President Bush won’t make good on his nuclear-type promises to put a Thomas or Scalia on the high court. Maybe Roberts will be a guy with a nice demeanor, a bright man and one who is – as judges should be – fair and open-minded.

No such luck. While others were sleeping, I was up reading memoranda and briefs from days when Roberts was a political operative disguised as a lawyer working in the Reagan administration. It did not take long for the nice-guy image to fade. In its place is a judge in the mold of Scalia more than Thomas, one who is mightily impressed with himself and his intellect and one who does not care a flip for everyday Americans.

When he and his fellow “conservatives” talk about not “legislating from the bench,” what they mean is that the 14th Amendment that guarantees constitutional rights to all Americans, regardless of what state they live in, should, in effect, be abolished. The Bush line on “legislating from the bench” means that the courts should not protect the people from governments who interfere with those rights so inimical to American values – freedom of religion, press, speech, freedom from unreasonable searches and seizures, and due process and reproductive rights.

Roe v. Wade was third in a line of cases that struck state laws against contraception. If you think that Roe v. Wade won’t be reversed in the next few years with Roberts in the majority, you are living in a dream world. Roberts writes contemptuously about Roe v. Wade and the right of women to have any say over their own bodies. Any state laws that prohibit end-of-life decision making by competent adults would also be in jeopardy.

Legislating from the bench was what led the court to reject separate but equal education. After all, Brown v. Board of Education was about as activist a decision as one could imagine, overturning a prior decision, Plessy v. Ferguson. States would be, in the Roberts scheme, free to return to segregated education. This may not apply for black people – perhaps we have advanced enough that black and white children can learn together – but were Texas, for instance, to want to segregate Hispanic children from “white” children, Roberts would think that would be just fine.

Roberts would add one more vote to legislating from the bench as the court seeks to roll back the laws that protect the environment. Roberts’ judicial decisions, memoranda and arguments as a private attorney come down on the side of big business and against the environment. Roberts would like to strip Congress and the federal agencies of the power to make our air and water safe. Leave it to the states, he would argue, and let the big businesses make their deals with state legislatures.

Roberts would like to overturn federal laws and regulations that bring a modicum of justice to everyday citizens. Like the Voting Rights Act. Roberts came out strongly against portions of it as a lawyer working in the Reagan White House. He argued that blacks did not have to have “real” voting rights – the government just had to make people think that they had some rights.

Those who claim not to know what Roberts thinks have not done their homework. Roberts is at the far-right of a far-right party, the party that thinks it has the corner on being right. Roberts may be right for the powerful and the wealthy, but he is not right for ordinary Americans, those of us who pay his salary.

We need a people’s Supreme Court. Like George Bush, Roberts was born into privilege. In his world view, the privileged and the powerful own the playground and the marbles. The rest of us may as well go home and do as we’re told.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teaches law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. Her new book The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, is published by Lawrence Hill. She can be reached at: