School Choice Advocates Optimistic About Roberts

Published November 1, 2005

On October 3, the Supreme Court of the United States began its 2005-2006 term, and newly confirmed Chief Justice John Roberts began what could be a long tenure presiding over the highest court in the land.

Some school choice advocates say they are heartened to see the new chief justice, confirmed in a 78-22 vote by the U.S. Senate on September 29, beginning work. Richard W. Garnett, a Notre Dame University law professor and former clerk to the late Chief Justice William Rehnquist, said Roberts’ career and general judicial approach bode well for the school choice movement in future court proceedings.

“Those of us who care about school choice don’t need an ideologue or an activist on the Court–after all, we have the Constitution, properly understood, on our side,” Garnett said. “All we need from John Roberts, and all we are entitled to expect, is that he approaches school choice-related cases with the same modesty, deference, and respect for the rule of law that he has exhibited throughout his legal career.”

Court Okayed Vouchers

School choice opponents often claim government-funded school vouchers violate the so-called separation of church and state if parents use the money to send their children to religious schools. But the U.S. Supreme Court upheld the constitutionality of choice in its landmark 2002 decision, Zelman v. Simmons-Harris, which maintained vouchers are permissible so long as the law does not limit parental choice only to religious schools. Garnett believes Roberts’ approach most likely will favor upholding such school choice programs as constitutional.

“I do not think we can ‘know’ much about how nominees will rule–after all, so much depends on the facts and procedural posture of particular cases,” he explained. “That said, I think Judge Roberts’ record makes it very clear that he is not disposed toward thinking that the Constitution’s Religion Clause, properly understood, stands in the way of choice-based education reform.”

Clint Bolick, president and general counsel of the Alliance for School Choice, noted that during his career as a lawyer, Roberts participated in school law events sponsored by the National School Boards Association, which Bolick called “virulently anti-choice.” Still, Bolick was more encouraged by Roberts’ general judicial philosophy than he was concerned about the judge’s former clients.

Chief’s Powers Limited

Garnett noted that as chief justice, Roberts is “first among equals” and enjoys certain privileges, along with additional administrative duties accorded the position.

“The chief can ‘exert power’ in the sense that, by assigning opinions to some justices rather than others, he can influence an opinion’s tone and content, even if he does not write it,” Garnett said.

Bolick added that the chief justice’s judicial influence also lies in his right to assign an opinion to himself.

“Sometimes the chief will vote with a majority with which he doesn’t agree, assign the decision to himself, and write a very narrow opinion,” Bolick explained.

Blaine Amendment Ruling Likely

Both Bolick and Garnett believe school choice cases might reach the Supreme Court again, and the constitutionality of states’ Blaine Amendments could be the focus. Blaine Amendments are provisions found in most state constitutions prohibiting direct government aid to schools that have religious affiliations. School choice advocates argue that vouchers are aid to students, however, not schools, and the Supreme Court agreed in the Zelman case.

“The radical version of ‘strict separation’–under which the flow of any public funds to any religiously affiliated schools is the first step toward theocracy–is not likely to hold any appeal for Roberts,” Garnett said. “At the same time, he is not likely to think it is the job of courts to tell legislatures and school boards how to run schools.”

“Cases raising the constitutionality of the Blaine Amendments in terms of excluding religious schools from choice programs may be working their way up to the Supreme Court in Florida and Maine,” Bolick noted.

Questions Remain

But Roberts’ approach to Blaine Amendment cases cannot be determined at this time, Garnett said.

Roberts’ opponents expressed frustration both before and during the Senate confirmation process about his apparent reluctance to address specific issues. But Garnett said Roberts’ refusal to specifically answer many of the questions asked was fair.

“I do not know what substantive views Judge Roberts would bring to this question; it is possible, on the one hand, that he would be inclined to defer to the state-law provisions,” he said. “On the other hand, he could also conclude that, under controlling precedents, state laws that discriminate against religion are invalid.”

Roberts, who clerked for Rehnquist in the early 1980s, was initially nominated by President George W. Bush to replace retiring associate justice Sandra Day O’Connor. Roberts’ nomination was elevated to the role of Chief Justice following Rehnquist’s death in early September.

Kate McGreevy ([email protected]) is a freelance education writer living in New Mexico. She formerly worked with the Cesar Chavez Public Charter Schools for Public Policy in Washington, DC.

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