Chief Justice John Roberts?

[Bob Sheridan]

DavidEBernstein at aol.com wrote:

>  
> ...As for the criminal procedure stuff, isn't odd that the Warren 
> Court, and not the Constitution, is the body that "afforded criminals" 
> these protections.  I generally like these protections, but I'll be 
> damned if I can find Miranda warnings, even implicitly, in the 
> Constitution.
>  
> All this is a long way of saying that while I have my serious 
> disagreements with Rehnquist, it's wrong to judge a Justice by 
> the practical consequences of his decisions, regardless of whether 
> they were legally correct.


***
It seems there's a good deal of Constitutional Law that, the more 
conservative one is, cannot, or at least had not, been found in the 
Constitution until the Court ruled otherwise, starting with judicial 
review, going to a loose construction of the commerce clause, proceeding 
to the incorporation theory, and all sorts of liberty, equality, and FA 
protections.  In fact, the whole concern of Conlaw is what can be found 
in the "Constitution," meaning the accumulated body of doctrine over the 
centuries.

Assuming some truth to that, the question is what an intelligent person 
with a conservative bent who has been active and alert over the past 
three decades is apt to do if made Chief Justice over the next three 
decades.  What does he keep and why does he keep it, and what does he 
get rid of in the way of rights and protections on the ground that 
originally such rights were not "in" the Constitution and he wouldn't 
have voted for them had he been on the Court then, which he wasn't.

Isn't this the key question for conservative justices, how much of the 
decisions laid down long ago must be kept for reasons of reliance, 
continuity, and having become part of the "fabric of society," as the 
late C.J. William H. Rehnquist, of respected memory, recognized in 
upholding Miranda as constitutional, not lesser, doctrine in Dickerson, 
and the Troika in Casey?

As for the proposition that it's wrong to judge a Justice by "the 
practical consequences of his decisions, regardless of whether they were 
legally correct," I wonder.

Justices are not theoretical scientists concerned with uncovering basic 
laws of the universe, oblivious to the practical implications better 
left to engineers and technicians.  In the Universe of Conlaw there are 
no bedrock principles.  They've all been invented out of human 
experience, some of which is only thought to produce what supporters 
like to call bedrock.  The only value a principle has is in its 
practical consequences.  If a principle does not have practical 
consequences such as whether a woman can have the abortion, or whether 
we can do stem-cell research that may result in a medical treatment that 
means the difference between life and death to someone, the principle 
is, or has become, useless or evil.

One of the reasons we honor John Marshall is that his principles are 
said to have resulted in practical applications of enduring utility.  
That applies even more to the Framers, and is perhaps the reason we 
congratulate them, since we're probably actually congratulating 
ourselves for having built on and cherry-picked the better ideas while 
letting the others slide into the background.

rs

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