The day of the Roberts nomination felt like one minute to Doomsday–until John Roberts’ name was announced. Washington was expecting a slash-and-burn conservative like Edith Jones or Janice Rogers Brown. Instead we got a tabula rasa, a man with virtually no record.
This is hardly an unfamiliar position.
Fourteen years ago, the last President Bush nominated an equally blank slate to sit on the Supreme Court.
Like Roberts, Clarence Thomas had a long record of government service, a very short career on the bench, and an almost non-existent paper trail. In less than two years as a judge, Thomas authored only 25 opinions, 22 speaking for the majority, 2 in concurrence, and one lone dissent. His record revealed someone who was doubtlessly conservative, but no more so than, say, Chief Justice Rehnquist.
No one could have guessed what Justice Thomas was keeping secret. In a series of decisions beginning with U.S. v. Lopez, Justice Thomas would have restricted Congress’ power to enact economic regulation to a point unheard of since the Great Depression. It’s difficult to count the laws which would cease to exist under Thomas’ approach, but one commentator lists “the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as well as minimum wage and maximum hour laws” as likely suspects. In Clarence Thomas’ America, whites-only lunch counters are permitted, but basic labor protections are forbidden.
Justice Thomas’ stance on religion is equally radical. In Elk Grove Unified School District v. Newdow, Thomas argued that the Establishment Clause, which prohibits the government from establishing an official religion, does not apply at all to the states. Under Thomas’ framework, the state of Alabama could not only display the Ten Commandments in its courthouses, but it could fund such displays with taxpayer dollars, and even require students to learn conservative Christian doctrine in public schools. Parents upset by such a curriculum would have no recourse except to move to another state and pray that similar policies weren’t adopted in their child’s new school.
Newly released documents from Roberts’ tenure in the Reagan Administration are consistent with, but are not necessarily proof of, an ideology just as radical as Clarence Thomas’. Regretably, Judge Roberts’ record is far too sparse to determine whether he would join Justice Thomas’ most radical opinions, but the American people still have a right to know whether Roberts would join Thomas’ crusade against the New Deal, the Civil Rights Movement, and the Separation of Church and State.
When the Senate considers Judge Roberts’ nomination this September, the burden must be on Roberts to prove his rejection of Thomas’ radical ideology. We know exactly as much about John Roberts now as we knew about Clarence Thomas in 1991, and America cannot afford to play Russian Roulette with the Supreme Court.
– Ian Millhiser