Bloomberg columnist Andrew Ferguson recently interviewed newly-minted Dartmouth Trustee Peter Robinson for an article about John Roberts. Robinson was a speech writer in the Reagan White House; just one door down, at the time, from a younger, brasher version of John Roberts. Only Roberts wasn’t the bumptious young legalist one might have expected. Ferguson wrote that, if one thing is clear from Roberts’ writings of the day, it is that he was a Reaganite. That may be true in one sense, but few would characterize the Gipper’s politics as gossamer. Roberts was a gentler giant. “We were all young enough to take Reagan’s imprint,” Robinson is quoted as saying. He continued:

We felt that with Reagan, you got the whole package. He was for limited government, for a strict reading of the constitution, and he had a profound respect for the people. Yes, the people may make a mistake now and then but over time you could trust their wisdom. Those ideas fit exactly what we know about Roberts’s judicial philosophy.

It isn’t quite the Poll ‘Till You Drop philosophy of the quasi-populist Clinton administration. It is an earnest and overarching wont to trust in the American people, instead of an earnest and overarching desire to evaluate the trustworthiness of the American people on a rolling basis. It is a philosophy sorely lacking in Washington proper and the courts especially.

John Roberts, then, represents a chance to reform the judiciary in a way that will make it less presumptive (which, in some bad apple judges, is manifest in grandstanding and unprecedented dicta) and more interpretive of the will of the citizenry. It is a temperament that reaches back to the days of Chief Justice John Marshall, whose self-denying decision in Marbury v. Madison gave the Supreme Court the charge it works under most often today: to interpret the constitutionality of laws passed by the legislature. There is no implicit charter to divine new laws, which is what is meant by the term “judicial activism”.

In his response to a questionnaire issued by senators on the Judiciary Committee, Roberts wrote:

In our democratic system, responsibility for policy making properly rests with those branches that are responsible and responsive to the people. It was precisely because the Framers intended the judiciary to be insulated from popular political pressures that the Constitution accords judges tenure during good behavior and protection against diminution of salary.

To certain small segments who have learned to take the judicial fiat for granted, Roberts later clarifies that “judicial vigilance in upholding constitutional rights [is] in no sense improper ‘activism.’” The basic, essential, and timeless rights conferred upon the people in the Constitution are forever and exclusively secured by the Supreme Court. This happens through review, and cannot happen through any other means. No assertive law conjured and enacted by the judiciary can possibly protect the rights of the citizenry enumerated in the Constitution, precisely because those given rights encompass everything excepting the few set aside for the Executive, the few for the legislature, and the few for the judiciary. The infinite rights given to the people and states in the Constitution are for those two entities to untangle and arrange. Over time, America and her fifty states have made sense of most essential things. There is something of an understanding. When one of these understandings comes to conflict with the few sinews of higher law, the Supreme Court is there to strike it down and reassert order. The prime example, of course, is Civil Rights.

It is a filter for a top-down process; the people on the top, a representative legislature below them, a judicial sieve in the middle, and the executive at the bottom. In theory, only the constitutional laws come to be enforced. In this way, a Roberts court would be highly active without the unconstitutional tinge of activism. It would maintain power where it belongs: with you.