During his hearings before the Senate Judiciary Committee, Judge John Roberts made a very compelling case that he was well qualified to be the next Chief Justice.  He was articulate, bright, and a superb legal scholar who could think on his feet.  Like David Souter before him, it was clear that he was much brighter than his questioners.  Moreover, the testimony from the American Bar Association and from others who know him left little doubt about his integrity and his overall qualifications.

In responding to one question, however, he stated that he became a lawyer because he loved “the rule of law.”  I found this response curiously mediocre at best, and suggestively tyrannical at worst. I would have preferred to hear him say something like this:  “I became a lawyer because I believe that every citizen has the right to be free from intimidation whether from the government, institutions, employers, or other citizens.  I also believe that justice demands that each of us has the right to life, liberty, and the pursuit of happiness.  I became a lawyer to apply my talents and skills to quash all obstacles put up by anyone to prevent those pursuits.”  Those are high ideals, to be sure.  But when we look to the Supreme Court, should we not expect that body to put our highest ideals first?   

In contrast, to love “the rule of law” is equivalent to loving “the health care system,” or to love “cheering crowds” as reasons for entering medical school or professional sports.  Each response is uninspiring, unimaginative, and suggests a lazy, below average mentality.  John Roberts is none of those, thus his answer was troubling.

Another interpretation of his response is this:  “The law should be foremost in our lives, not in the background.  It should dominate our activities and we should submit to it unquestioningly.”   Such an attitude would likely make Thomas Jefferson roll over in his grave.  It was Jefferson who reminded us with incisive eloquence, “that government is best that governs least.”  Jefferson might also have added that “not all laws are made by intelligent people, and many are so outrageous they deserve no respect at all.”

When you stop to think of it, there are tens of thousands of laws on the books across the country.  Are they all deserving of equal respect?  For example, forgetting to close a gate is against the law in Nevada. Flying a kite is illegal in Schaumburg, Illinois.  Shaking carpets in the street in Cambridge, Mass. is strictly forbidden. Being sexually aroused in public in Indiana may get you arrested. 

Nor is there consistency in punishments.  In Connecticut, the penalty for littering is $5, whereas in Georgia the penalty is $1,000.  (Interestingly, Connecticut highways are clean while Georgia’s highways are several degrees of cleanliness worse).  The fine for marijuana possession in Ann Arbor, Michigan is $5.  In most other places possession means jail time.  Mixed within these examples are thousands of crazy quilt laws that reflect neither intelligence nor common sense.  The prudent person will abide by them, of course, but he/she will not respect many of them.

The bottom line is this:  Justice Roberts’ questioners missed an opportunity to gain more insight into his judicial philosophy by not asking him to expand on his answer. Examples:  “Which to you believe is more important, the rule of law or the prevalence of justice?”  “Do you believe that we are ever justified in disregarding the rule of law?  For example, is it OK to ignore trivial or absurd laws in order to prevent a tragedy or to save a life?”

Now we must wait to find out his true answer.  Will Justice Roberts’s love of “the rule of law” be reflected in decisions that weigh against all those who show even a hint of disrespect for outrageous laws made by stupid lawmakers?  If so, the battle continues, and those of us who can think for ourselves are in for more trouble.