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Guardian of rights and liberties?
Is John Roberts the right man to lead the Supreme Court?


Afshin Pishevar
September 14, 2005

Senate confirmation hearings are the only thing separating John G. Roberts from dominating the highest court of the land as Chief justice for the next 30-40 years.  It appears that Mr. Roberts has the resume to qualify him to be on the Supreme Court.  The prevailing question is does he have the heart? 

Apparently he had dedicated his entire legal career to protecting the wealthy and the powerful rather than the fundamental rights of the American People. A quick look at the history of the Court will reveal the most important question that must be asked of Roberts during the upcoming confirmation hearings.

A constitutional crisis loomed over the United States in 1937.  President Franklin D. Roosevelt and congress has proposed and passed a series laws that were aimed at softening the impact of the Great Depression.  They were trying to protect the weakest and most vulnerable in society.  However, the (conservative) Supreme Court had used its power of judicial review to systematically strike down these economic reform laws.

President Roosevelt proposed a bold plan to add new justices to the Supreme Court. However, Congress refused to go along with the so-called "court-packing" plan.  Roosevelt lost the battle, but he won the war. Within a year, vacancies in the Court allowed Roosevelt to appoint younger, more liberal judges.

In ’38, the Supreme Court held that in connection with economic legislation, Congress had the power to act under very broad and pervasive “interstate commerce” and other powers.  Judges would not second-guess their legislative wisdom.

However, where economic rights had been the main issue of the judiciary in the first part of the 20th century, questions of individual rights and liberties would occupy the courts for the second half of the 20th century.

The bench-mark of this tansition is written in what is considered the most significant footnote in American jurisprudence.  In an otherwise un-noteworthy case (regarding federal regulation of milk content) (United States v. Carolene Products Co.), Justice Harlan F. Stone precisely defined the mission and purpose of the Court.  Congress had the power to regulate interstate commerce, and if it chose to set minimal standards for milk quality, that was the business of the legislature and not the judiciary.

This is where Justice Stone laid down the most famous Footnote in history.  Footnote 4 announced  that the Court would adopt a higher level of scrutiny where government action impacts certain fundamental rights and the weakest of political constituents in any democracy – “discrete and insular minorities.” 

Footnote 4 has been the basis for numerous decisions in cases protecting the integrity of the political process or involving "suspect" classifications.  These classifications include such categories as race, creed, alienage, religion and gender. While there had been some cases involving individual liberties prior to this decision, the footnote is the pivotal point in the Court's shift to being the guardian of civil rights and liberties, as well as the integrity of our democracy.

Text of Caroline Products Footnote 4.

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the 14th ...

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendments than are most other types of legislation...

Nor need we enquire whether similar considerations enter into the review of statues directed at particular religious...or national... or racial minorities; [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry...  Id. At 304 U.S. 144 (1938).

Afshin P. Pishevar, Esq. Law Offices of A.P. Pishevar & Associates, Rockville, Maryland. See

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