At least two well-known pundits, Rush Limbaugh and Charles Krauthammer, have compared FBI Director James Comey to Chief Justice John Roberts. Both, it is said, were reluctant to interfere with political processes. Roberts didn't want to overturn the duly enacted legislation known as ObamaCare; Comey didn't want to thwart the ambitions of the first female nominee for president. The implication is that both of these acts were unprincipled.
The analogy is weak. Roberts was acting in accordance with a respectable judicial philosophy. I can't think of anything similar in the case of Comey. Roberts is a proponent of what might be called "judicial modesty." This means a number of things. It means, first, that a case should be resolved on the narrowest possible grounds. For example, if a case can be resolved by interpreting a statute rather than by invoking the Constitution, it should be. It also means that a judge should show deference to the legislature. This creates a presumption of constitutionality. Unless and until it is shown that a statute is unconstitutional, it is assumed to be constitutional. One basis for judicial deference is that unpopular statutes can be repealed or amended. If the Supreme Court upholds a statute, the people, acting through the political process, can take action to correct what they believe to be an erroneous, misguided, or impolitic decision.
My point is not to defend judicial modesty (though I confess to finding it an attractive judicial philosophy), but to show that Chief Justice Roberts was acting on principle. I don't see any principle in the case of FBI Director Comey. Hillary Clinton obviously violated the law, and yet Comey recommended against prosecution. The only explanation of this decision is a desire, on Comey's part, not to interfere with the political process (or, more specifically, not to thwart the ambitions of the first female nominee for president). That's not a principle; it's closer to cowardice. Because there is a relevant difference between the actions of Roberts and Comey, Limbaugh and Krauthammer should stop assimilating the two cases. Leave Roberts alone.
