Dear Commons Community,

I have just finished reading Joan Biskupic’s new book on Chief Justice John Roberts entitled,  The Chief:  The Life and Turbulent Times of Chief Justice John Roberts.   I found it interesting but not riveting.  Insights into his personal life – growing up, education, his present family – were all well-done.  The lengthy descriptions of the judicial deliberations get deep into the weeds.  Regardless I found it worth the time to read its 349 pages excluding notes.

In picking it up, I had hoped to get clues as to whether Roberts  might emerge as a moderate on the Court in the coming years and take the place of Anthony Kennedy, who retired last year, as a swing vote.  There was hope when the Supreme Court upheld the Affordable Care Act in 2012, Chief Justice John Roberts provided the critical fifth vote, enraging conservatives and delighting liberals.  And last year he chided President Trump by declaring “We do not have Obama judges or Trump judges, Bush judges, or Clinton judges.” 

However, we also learn from this biography that Roberts clerked with William Rehnquist, worked closely with Ken Starr during his career, and was heavily involved in George W. Bush’s 2000 Florida election recount.  These associations lead me to conclude he is a staunch conservative.

I agree with one reviewer (see excerpt below):

“Biskupic all but throws up her hands toward the end of her narrative, calling Roberts an “enigma,” but she suggests that he is pulled by two often-conflicting instincts. One is ideological: a desire to move the court rightward on race, religion and other issues. The other is institutional: an interest in the court being respected and seen as nonpolitical.

That dichotomy is true as far as it goes, but there is another defining theme running through Roberts’s jurisprudence. Barack Obama, who taught constitutional law and is a keen judge of character, identified it when, as a senator, he was one of the 22 Democrats who voted against confirming Roberts. “When I examined Judge Roberts’s record and history of public service,” Obama said, “it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”

If you are interested in the Supreme Court and where it might be heading, this book is a worthwhile read.

Tony

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New York Times Book Review

The ‘Enigma’ Who Is the Chief Justice of the United States

The Chief:
The Life and Turbulent Times of Chief Justice John Roberts
By Joan Biskupic

…

In “The Chief,” her assiduously reported and briskly written biography, Joan Biskupic, a CNN analyst who has long covered the court, offers new behind-the-scenes details. Roberts was, she says, initially inclined to strike down a key part of the law, the individual mandate, which required people to have insurance or pay a penalty. But during the opinion-drafting process he joined the liberals in affirming it.

While Biskupic sheds light on when and how Roberts made that decision, she is less illuminating on why. She ticks off leading theories: He was wary of overturning the elected branches of government on such an important issue, or reluctant to throw the national health care system into chaos, or worried about the court’s reputation. It is not clear, however, which of these, if any, explains why he came out as he did.

The difficulty of understanding that historic vote is emblematic of something larger: just how hard it is to figure out who Roberts really is. With his square-jawed, no-hair-out-of-place looks and icy smile, he often resembles an animatronic version of a chief justice, with the dial set firmly to the right. Who Roberts is and what he stands for are more important than ever since Anthony Kennedy retired last year and Brett Kavanaugh, who is more conservative, took his seat. Roberts is now both chief justice and the court’s swing justice — which means that, increasingly, the law is likely to be what he says it is.

Born in 1955, Roberts grew up in a conservative world, in the affluent, heavily white town of Long Beach, Ind., the son of a Bethlehem Steel manager. He was, from an early age, intelligent, religious and something of a grind. He was known at Harvard College for attending Catholic Mass every Sunday, and for his studious intensity — one roommate recalled him often having indigestion and always having a bottle of Pepto Bismol on hand. After college, he went on to Harvard Law School and a clerkship with Justice William Rehnquist before Rehnquist became chief justice.

Roberts joined Ronald Reagan’s Justice Department when it was on a campaign to drive American law to the right. In his mid-20s he fought to narrow the reach of the Voting Rights Act, one of the civil rights movement’s crowning achievements. He also tried to persuade the administration to support Texas’ fight for the right to deny a free public school education to undocumented immigrant children.

When he joined President George H. W. Bush’s Office of the Solicitor General, which represents the federal government before the court, Roberts argued against a program that promoted minority ownership of broadcast licenses, which the Supreme Court upheld. He also argued, successfully, for a decision that made it easier for states to end court orders requiring school districts to desegregate.

In 1996, Roberts, who was by now working at a private law firm, married Jane Sullivan, a lawyer who shared his conservative political views. Jane, whose mother was an Irish immigrant, had grown up in the Bronx and attended Holy Cross and Georgetown Law School. Like Roberts, she was an observant Catholic, and she served on the board of the anti-abortion organization Feminists for Life. After a few years, the Robertses, who were both in their 40s when they married, adopted a girl and a boy.

After the 2000 election, Roberts served on the legal team for George W. Bush in Bush v. Gore, the case that handed Bush the presidency. Like many lawyers on the team, Roberts was richly rewarded. Within months of the inauguration, he was nominated to the United States Court of Appeals for the D.C. Circuit.

When Sandra Day O’Connor announced her retirement in 2005, Bush nominated Roberts to take her place. Before he was confirmed, however, Chief Justice Rehnquist died, and Roberts, in an upgrade, was named to succeed him.

At his confirmation hearing, Roberts played down his highly ideological Justice Department work and famously insisted that he saw his role as judge to be like an umpire. “Umpires don’t make the rules,” he told the Senate, “they apply them.”

Representative John Lewis of Georgia, who was beaten in 1965 while protesting for voting rights in Alabama, spoke for many in the civil rights community when he declared that Roberts was “on the wrong side of history” and urged senators to oppose him. Roberts was confirmed, however, by a 78-to-22 vote.

Roberts has, with few exceptions, been the sort of hard-line ideological chief justice his conservative backers hoped he would be. He has presided over a court that has swept away campaign finance regulations, most notoriously in Citizens United v. Federal Election Commission, which invalidated a well-established ban on corporations spending money to elect candidates. After one particularly sharp ruling against desegregation plans that school districts adopted voluntarily, Patrick Leahy, the senior Democrat on the Senate Judiciary Committee, declared that Roberts had “made the court an arm of the Republican Party.”

Roberts also continued the war on voting rights that he had begun as a young lawyer, writing an opinion in a 2013 case that critics called “a dagger to the heart of the Voting Rights Act.” Roberts has been particularly meanspirited in gay rights cases. When the court decided Obergefell v. Hodges, the landmark ruling recognizing a constitutional right to marry for same-sex couples, Roberts wrote a dissent comparing it to the infamous Dred Scott decision, which rejected an enslaved man’s suit for freedom. Even Richard Posner, a court of appeals judge nominated by Reagan, called Roberts’s dissent “heartless.”

Biskupic all but throws up her hands toward the end of her narrative, calling Roberts an “enigma,” but she suggests that he is pulled by two often-conflicting instincts. One is ideological: a desire to move the court rightward on race, religion and other issues. The other is institutional: an interest in the court being respected and seen as nonpolitical.

That dichotomy is true as far as it goes, but there is another defining theme running through Roberts’s jurisprudence. Barack Obama, who taught constitutional law and is a keen judge of character, identified it when, as a senator, he was one of the 22 Democrats who voted against confirming Roberts. “When I examined Judge Roberts’s record and history of public service,” Obama said, “it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”

Roberts, in fact, regularly opposes the rights of blacks, gay people, the poor and other relatively powerless groups. His bias against the weak was on display even in the Obamacare decision, which is often considered his great blow for the common man. While he voted to uphold most of the act, he wrote an opinion striking down, on the flimsiest of constitutional grounds, the Medicaid expansion provision that required states to offer Medicaid to more poor Americans. With that holding, Roberts helped take away health care from millions of the nation’s poorest people.

Given the court’s current composition, anyone who does not want the law to lurch to the right in civil rights, gay rights, abortion and other areas has to hope Roberts will hold it close to its current course — either based on actual beliefs, or to protect the Supreme Court as an institution. Roberts could become the court’s new moderate center. But Obama’s insight about Roberts’s deep-seated bias against the weak, which rings powerfully true, suggests that may not be the way to bet.