Tuesday, September 13, 2005

The Law vs. Justice

Thomas Oliphant in the Boston Globe:

JOHN ROBERTS is poised to win confirmation as the next chief justice of the United States because, among other things, he knows the law cold. But after one of the most near-perfect, resume-punching voyages ever to the Supreme Court, there is almost no evidence of his understanding of justice.

This has nothing to do with the overwhelming odds of his confirmation by the Senate. It does, however, have something to do with how his possibly routine elevation should be received.

To illustrate, I have no doubt that his encyclopedic knowledge of constitutional history includes a detailed understanding of Plessy v. Ferguson, the landmark abomination that enshrined segregation in 1896 for another 58 years under the delusional mantra of ”separate but equal.” It wouldn’t surprise me if Judge Roberts could quote sentences from Justice Henry Brown’s majority opinion on behalf of eight brethren and even from John Harlan’s passionate dissent.

But I doubt very much that Roberts knows beans about Homer Plessy, and I can imagine him being tripped up even if asked Plessy’s first name. It is that human face of justice, or injustice, that concerns me, and, from the available record anyway, has never interested Roberts.


Perhaps it is a measure of how things have changed that while it is generally considered intrusive to ask a Supreme Court appointee how he might rule on actual or hypothetical cases, there are exceptions, and fealty to the Brown decision has been one of them for years.

Roberts will have no trouble passing the litmus test. But his passing of it will mask the long record of his fealty to the true purpose of conservatism in civil rights for well over a generation — the blocking of remedies to achieve broad desegregation and promote genuine integration and equal opportunity. His paper trail shows consistent fealty to the sideshows over affirmative action, “quotas,” and other manifestations of the effort to restrict civil rights gains as threats to white people.


Roberts’s record is that of a defender of these arrangements, which will put him in the mainstream of Supreme Court actions going back a generation. My guess is that the more Americans know about this era on the court, the less they will like it — hence, for example, the effort to close off the records of Roberts’s Justice Department tenure under President Bush I.

Barring a documentary bombshell, Roberts’s confirmation should be the occasion of a sad shrug. Homer Plessy met his equivalent more than a century ago.

To quote my friend Bob, there is a difference between being legal and being right. I hope that one of the things we learn in the hearings is that Judge Roberts knows the difference.