Hearing of the Senate Judiciary Committee - Nomination of John G. Roberts - Statement by Robert B. Reich, Brandeis University

Testimony of Robert B. Reich
U.S. Senate Judiciary Committee
Hearings on the Nomination of John Roberts to be Chief Justice of the Supreme Court

September 15, 2005

How Justices of the Supreme Court interpret the Constitution and federal and state laws is not merely a question of judicial philosophy - of whether they seek out the "original intent" of the Framers or lawmakers, defer to legislatures and agencies, or meticulously follow Court precedents. It also depends on their values - their understanding where the nation is at a point in historic time and how it needs to progress. If it were nothing more than judicial competence and philosophy of interpretation - if moral values weren't directly at stake here - the President's short list for Chief Justice might have included Harvard's Lawrence Tribe and other eminent scholars and jurists who presumably share a view of America different from that of John Roberts. Roberts was nominated by the President because he shares the President's values. It is the President's prerogative to make such a nomination, of course, but it also the Senate's prerogative to examine those values and to accept or reject a nominee based on them.

Social or religious values have been given much emphasis in these proceedings. I want to suggest that economic values are also at stake. It may seem strange to talk about the economy in moral terms but that's only because we often don't recognize that moral choices are involved.

A central moral problem for the American economy today is that, although it has been growing at a good clip and corporate profits rising nicely, most American paychecks have been going nowhere. Last year, the Census Bureau tells us, the economy grew a solid 3.8 percent. Yet median household income barely grew at all. That's the fifth straight year of stagnant household earnings, the longest on record. Meanwhile, another 1.1 million Americans fell into poverty, bringing the ranks of the poor to 37 million. And an additional 800,000 workers found themselves without health insurance. Only the top 5 percent of households enjoyed real income gains. These trends are not new. They began thirty years ago but are now reaching the point where they threaten the social fabric. Not since the Gilded Age of the 1890s has this nation experienced anything like the inequality of income, wealth, and opportunity we are witnessing today.

A central moral choice, then, is whether America should seek to reverse this trend. Those who view our society as a group of self-seeking individuals for whom government's major purpose is to protect their property and ensure their freedom of contract would probably say no. Those who view us as a national community of with responsibilities to promote the well-being of one another would likely say yes. Is the well-being of our society the sum of our individual goods, or is there a common good that must be addressed? The answer will shape the American economy and society of the twenty-first century.

Over the next decades, the Supreme Court will play important role in helping us make this choice. Under the guise of many doctrines and rationales - interpretations of the takings and due process clause of the Fifth Amendment, the equal protection clause of the Fourteenth Amendment, the Commerce Clause, the doctrine of federal preemption, the doctrine involving improper delegations of legislative or judicial powers to regulatory agencies, and so on - the Court will favor either property or community, depending on the economic values of a majority of the Justices.

The balance in the Court is quite close. In one recently decided case, for example, a majority of the Court said government can take private property from one owner, compensate him at fair market value, and then turn the property over to someone else - but only if the transaction is part of an economic development plan for the community and it doesn't benefit a particular class of identifiable individuals. In other words, it can't be a political payoff or money grab. This reasoning raises value-laden questions, with which the next Chief Justice and the future Court will have to grapple: What constitutes valid economic development, and how can you tell whether certain people are getting a disproportionate benefit from it? The answers will depend largely on how the Justices balance property and community.

On the other hand, several years ago a closely-divided Court found that a ruling by the California Coastal Commission that conditioned a building permit on the owner granting public access to the ocean was an unconstitutional "taking" because it didn't substantially further the public purposes of California's coastal land-use law. In this instance, the Court ruled in favor of property and against community but left unanswered the larger question of how the Court should determine the public purposes of particular laws and whether regulations substantially furthers them. These questions are also likely to arise more frequently. The Court will be called on to determine the constitutionality of many regulations under the takings clause, since regulations almost inevitably affect the value of property being regulated.

As inequality continues to widen, the Court's choice between property and community will have larger consequences. Americans are segregating by income into cities and towns that are ever more uniformly rich, middle class, or poor. Hence, questions will be raised about equitable provision of public services. Do our poor and working-class children have the right, under the Equal Protection Clause, to as good an education as the children of our wealthier citizens? A future Court that says yes presumably would deem unconstitutional much of our present system of primary and secondary education, in which spending per child largely is based largely on local property taxes that vary enormously depending on whether the locale is rich or poor.

The wages and benefits of women and minorities continue to lag substantially behind those of white men in our society. And blacks and Latinos comprise a substantial portion of the nation'

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