Good Questions

George Will's column in the Washington Post today is made up of questions that Will suggests could/should be asked of Judge Roberts during his confirmation hearings next week. I think Will's done an excellent job with these, getting at some of the most important elements of a potential Roberts jurisprudential philosophy, and I recommend the piece.

Some of the questions:

- "The doctrine of stare decisis -- respect for precedent -- gives the law predictability and has given citizens due notice of what is probably required or permitted. There are, however, occasions -- for example, overturning Plessy v. Ferguson and the constitutionality of racial segregation -- for abandoning precedent. What characterizes such occasions?"

- "With its Dred Scott decision of 1857, the Supreme Court sought to solve the sectional crisis by ruling that under the Constitution slaves and their descendants could never count as U.S. "citizens." Is it not arguable that this decision was (a) originalism and (b) activism?"

- "In 1798, just seven years after the First Amendment was added to the Constitution, Federalists, then a congressional majority, said the Sedition Act was compatible with the amendment because freedom of speech meant only freedom from prior restraint -- from prohibitions on speaking -- not freedom from subsequent punishment for what was said. However, Republicans such as Albert Gallatin said it is 'preposterous to say that to punish a certain act was not an abridgement of the liberty of doing that act.' Is the fact that Gallatin's view has prevailed a defeat for 'originalism'? If so, aren't you glad?"

- "[Justice Oliver Wendell] Holmes, advocating judicial restraint in the name of majoritarianism, said: 'If my fellow citizens want to go to Hell I'll help them. It's my job.' In the past decade alone, the Rehnquist Court, in an unprecedented flurry of activism, has struck down more than three dozen enactments by the people's representatives in Congress. Are you for such judicial activism, or are you for helping us go to Hell? Or is this the fallacy of the false alternatives?"

There are others, so please do read the whole column, but this gives you a flavor. Answers to these questions would give us a very good idea about how Roberts will handle himself on the bench, and I hope all the senators who read Will today consider adapting some of his suggestions for themselves.