From my favorite law prof (I don't say that in jest):
All of that said, my best guess is that he would be a very conservative justice. And because he is so gifted and so decent a human being, he might become incredibly influential on the Court, moving it in ways that justices like Scalia and Thomas have been incapable. In short, he could ultimately be a progressive's worst case scenario.In other words, meanies like Thomas and Scalia are tolerable because they won't hold sway on the court, and thus can't do damage to court precedents (Roe) that enshrine liberal policies into the constitutional fabric (while removing them from the legislative process!). Roberts, however, is dangerous not just because he is conservative, but because he would be an effective conservative, which means those same liberal precedents are sure to be seen for what they are, departures from the text and meaning of the Constitution that should be overturned so We the People (remember us) can govern ourselves through our elected representatives and the political process that the Founders set up in the Constitution.
So all of this leaves me quite conflicted. I am proud that a citizen of John Roberts's ability and character has been honored by our President in a way that, in a sense, he so richly deserves. But at the same time, I harbor some deep reservations. It is unclear that a great person with impeccable credentials should, for those reasons alone, be seated on the Supreme Court. If he holds a very constrained view of the role of government in modern society, or of the fundamental liberties protected by the Constitution, his confirmation could turn out quite badly for the country.
Moreover, nothing Joondeph says about Roberts should disqualify him from the court. Joondeph doesn't argue that Roberts will insert his own policy preferences into the constitution. Roberts isn't a judicial activist. The complaint about him, summed up, is that Roberts will interpret the Constitution as it was written. It gives us a great insight into left wing thinking that someone with the "impeccable credentials" that Roberts has is somehow not worthy of a seat on the court because he interpret the constitution as it was written and won't take such an expansive view of the text of the Constitution to include "rights" clearly NOT included. Roberts's alleged "constrained view" would allow the political framework that the Founders set up (i.e., representative democracy) to determine whether or not to accord protection to new rights and privileges as they may come up from time to time.
Also, Joondeph suggests that Roberts's confirmation would turn out badly for the country and be the worst case scenario for progressives, implying that they are the same thing. To the contrary, ending the liberals' use of the Supreme Court as their own personal constitutional convention would be extremely good for the country (though bad for them). In fact, nothing could be better for the country than for the court to return to its traditional role of saying what the law is and not what 5 justices want it to be (i.e., legislating from the bench).
By allowing issues like abortion or gay rights, for example, to be resolved politically, rather than legally, it would force both liberals and conservatives to explain themselves to the electorate and face the consequences at the ballot box. It may not be pretty or fun, but that is the system that we have and courts should not eliminate our participation in it. Roberts is dangerous to liberals because he might be willing to allow us to vote on abortion, gay rights, etc, and that is something that the left is deathly afraid of because they think they might lose.
As a conservative, I don't know, in the end, whether or not I'll be on the winning side, and that is risky, but I'd rather take my chances that I won't be able to persuade my fellow citizens that my view is correct, than have the unelected Supreme Court decide once and for all of us, whether or not it makes good policy sense to protect various rights that appear no where in the Constitution. That is what the Court has been doing for a long time, and it is long past time that the political process resolves these political questions. If John Roberts will do that, then not only should he be confirmed, but he should be the model for future nominations.
