US Chief Justice talks ‘confining’ constitutions in NZ

US Supreme Court Chief Justice John Roberts has delivered a blow - of sorts - to Kiwi backers of a written constitution, discussing his experience with the “narrow and confining” US Constitution during a speech to a Wellington audience.

Roberts is in the capital to teach an executive development course at Victoria University, and on Wednesday night spoke at a university event.

Security was heavy and controversial topics were off-limits, with no mention of US President Donald Trump or the legal ramifications of his “Muslim ban”.

Instead, Roberts began by telling Victoria University dean of law Professor Mark Hickford he first started thinking about law seriously as a discipline “about halfway through my first year of law school”.

“I had planned, as I approached the end of my undergraduate studies, to pursue an academic career in history - it turned out there were very few opportunities to do that.”

Instead, he decided to channel his enthusiasm for history through legal precedents, serving in a range of roles before George W. Bush nominated him to fill the chief justice vacancy on the Supreme Court in 2005 - a move that “certainly caused some anxiety”, given he had spent only two years as a judge compared to his other, more experienced colleagues.

“That’s why we wear black robes: our personal identity is not supposed to be important as we carry out our jobs.”

Roberts said it was important to understand judges were not part of the political process - a fact sometimes lost on people when a court ruling affected politicians’ decisions.

While public surveys often showed many Americans couldn’t recognise Supreme Court justices - “of course Judge Judy always finishes first”, he quipped - it was “not a great disappointment” that they were not afforded the same status given to politicians.

“That’s why we wear black robes: our personal identity is not supposed to be important as we carry out our jobs.”

Roberts said the judicial appointment process in the United States had become “overly politicised”, due to a lack of understanding about what factors were relevant when selecting a judge.

“Judges are not politicians, so they shouldn't be scrutinised as if they are - they’re not elected representatives so you’re not entitled to know what their views on political issues are...

“You’re going to select someone who is going to objectively and fairly apply the law that binds the other political branches.”

Written constitution 'confining'

During the talk, Roberts also touched on the merits and drawbacks of a written constitution - an issue of interest to some in New Zealand after former prime minister Sir Geoffrey Palmer released a book last year setting out a draft constitution.

While Sir Geoffrey looked on in the crowd, Roberts was quick to note that “it would be very presumptuous of me to offer advice about structuring the political system in New Zealand”.

(Sir Geoffrey Palmer later contacted Newsroom and offered his view on the matter, which can be read below.)

But speaking about the United States, he said the constitution was in many respects a limitation on the ability of judges to introduce their “personal predilections” in judgments.

“The framers of our constitution hoped they were drafting a document that would withstand the test of time and they used in many instances very broad, capacious terms.

But on the other hand, they can be specific guides to what you’re supposed to look at, and in some cases quite narrow and confining.”

Asked about the biggest concern facing the Supreme Court, Roberts spoke about the challenges posed by technological issues, such as increasingly complex patent cases.

“Any kind of device you want, they can have as many as 200,000 different patents that control what’s in there, and to put a judge in the position of saying, ‘Is this something that’s a novel contribution to the device or not?’, it’s a great challenge.”

Technological advances were also challenging legal boundaries, with law enforcement able to access heat imaging devices which could “see through walls” and threaten traditional common law understandings of when a house could be searched.

“We recently had a question about accessing an iPhone, whether the Fourth Amendment [against unreasonable search and seizure] would apply to that.

“I think the court correctly and unanimously determined that it did, because ask anyone here - would you rather have law enforcement rummaging through your desk drawer at home or rummaging through your iPhone?

“I mean, there’s much more private information on your iPhone than in your desk drawers, so yes the Fourth Amendment should apply, but that was a challenging question.”

Sir Geoffrey Palmer responds: Limiting power is the point of a constitution

It is great that you reported this important conversation. The Chief Justice of the United States is a superb lawyer.

The report seems to suggest that a written constitution is confining and that is a bad thing and that somehow I would not approve. That is not correct.

Confining public power is a good thing, because it limits the powers of executive government. That is the point of a constitution.

The written constitution being promoted by Dr Andrew Butler is exactly designed to confine the powers of politicians and define the powers of judges, with greater particularity than our remorselessly evolving unwritten constitution does.

That is why we are promoting it. But it is nothing like the United States Constitution.

We are preserving the Westminster system, not the system of divided powers that features in the United States.

The US has legislative gridlock. New Zealand does not have that and we do not want it.

Neither do we want federalism that is the cause of many of the complications in the United States.

Victoria University is a foundation supporter and sponsor of Newsroom.

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