Roberts the Elder

John Roberts has an understated personality, but his record will be all torpedo.

Published: September 13th, 2005

As John Roberts sits down before the Senate Judiciary Committee this week, its members will be searching to better understand the man who would become the 17th chief justice of the United States. If history is any guide, they will learn little about who John Roberts is and even less about who John Roberts will become. The problem with confirmation hearings is that, even with a forthcoming nominee, they offer only a snapshot of a jurist before he or sheenters the rarified and mind-altering world of the country’s highest court.
Senators have learned that a strange metamorphosis can occur in the walk over the east Capitol lawn to the Supreme Court building. In that short expanse, reliable conservatives have been known to transform into raging liberals, and vice versa.

Senators will, therefore, struggle with the need to know the unknowable: To paraphrase the Beatles, “Will you still need me, will you still please me, when you are 64?”

Only 50, Roberts will be assuming the position of Chief Justice as a relative puppy among his older colleagues. As a result, Roberts could be on the court for decades. Oliver Wendell Holmes served until he was 90; current associate justice John Paul Stevens will be 86 in October. Indeed, if Roberts stays on past 84, he could surpass the 34-year tenure of the great John Marshall as chief justice.

Predicting what Roberts will look like as a jurist at 64 or 84 is no easy task. The usual bachelor’s method for seeing the future effects of aging—checking out the mother—is hardly available here. Traditional forms of divination are equally unavailing. Oneiromancy (the divination of dreams) requires disclosure of Roberts’s dreams, which would immediately be claimed as privileged by the White House counsel’s office. Physiognomy (divination by the appearance of the face) would also come up blank. Since he was nominated, Roberts has adopted a perfectly Buddha-like appearance that denies any hint of emotion or recognition. Even goat entrails would trigger widespread protests from animal rights activists before anyone could read them.

This leaves perhaps the most historically unreliable method: predicting the future by studying the mosaic of past statements, opinions, and memoranda from the nominee. Past confirmations offer little assurance that any such prediction would rate above a random selection. History, including recent history, is replete with cases of mistaken identity. Consider but a few:

Earl Warren: President Dwight D. Eisenhower appointed Warren as a reliable conservative. After all, as the Republican governor of California during World War II, Warren supported the internment of Japanese Americans and maintained a tough-on-crime posture. He went on to lead perhaps the most liberal court in the history of the country.

William J. Brennan: Eisenhower appointed Brennan as a conservative Democrat. After all, Brennan had worked as a lawyer at the Pentagon, lobbied as a lawyer against pro-labor laws and regulations, and been put on the New Jersey Supreme Court by a fellow Republican. He became arguably the most liberal justice of the 20th century—and the second of what Eisenhower called his two biggest mistakes as president, Warren being the other.

Byron White: President John F. Kennedy had only one nomination during his presidency, and he picked his brother Robert Kennedy’s trusted deputy attorney general, Byron White. White turned out conservative on most issues, dissenting in Roe v. Wade and upholding anti-sodomy statutes directed at homosexuals.

Harry Blackmun: President Richard Nixon thought he had appointed a tough conservative from Minnesota in Harry Blackmun, as did most commentators. Indeed, Blackmun was called one-half of the Minnesota Twins with conservative chief justice Warren Burger. He went on to write Roe v. Wade and to join the left wing of the Court.

John Paul Stevens: President Ford looked to Court of Appeals judge John Paul Stevens to move the Court to the right. After all, Stevens was viewed as at least a moderate conservative and his opinions seemed to confirm that view. But after his more famous colleagues Brennan, Marshall, and Blackmun left the bench, Stevens would become the patriarch of the Court’s left wing.

Sandra Day O’Connor: President Ronald Reagan wanted two things in a nominee: a reliable conservative and a woman. His aides identified a little-known former state legislator from Arizona, Sandra Day O’Connor, as just the ticket. She became a continual thorn in the side of conservatives, the swing vote that repeatedly blocked her more conservative colleagues in areas like abortion and affirmative action.

David Souter: When it came time for the first George Bush to nominate a justice, his chief of staff, John Sununu, said he had hit a “home run” for conservatives in a little-known New Hampshire jurist named David Souter. It turned out to be a foul ball for the right as Souter quickly assumed a position on the Court’s left wing.

When White House lawyers tell scary stories to their children at night, these are the dark characters that fuel the horror. Indeed, these experiences are so raw and so recent that it is ludicrous to suggest the White House is taking another blind leap of faith with John Roberts. To the contrary, Roberts is only unknown by design.

Most of the cases of mistaken identity above have a fairly common denominator: The nominee did not have a well-articulated judicial philosophy before joining the bench. Notably, justices like Blackmun, Brennan, White, Stevens, and O’Connor moved only gradually to the opposite wing of the Court, as they developed their own approaches to the law. Indeed, Sandra Day O’Connor never truly found a consistent philosophy and remained a legislator at heart, dictating the outcome of cases without much concern for either consistency or principle.

Roberts is no Sandra Day O’Connor—and that is to his credit. Like many young lawyers in the Reagan years, he entered the law with a clear conservative mission. He cut his teeth as a clerk for William Rehnquist and then as a government attorney in the Reagan administration. He has held consistent and profoundly conservative views for decades. In this sense, he is more like his mentor Rehnquist as well as Antonin Scalia and Ruth Bader Ginsburg. They all came to the Court after years of advocacy marked by well-articulated legal views. Roberts is likely to change the Court, but the Court is unlikely to change Roberts.

Reporters and commentators have been poring over 50,000 pages of documents from Roberts’s career—seeking to find the true John Roberts. In the meantime, the White House has organized a phalanx of conservative lawyers to pounce on anyone who suggests they’ve found evidence of his actual views. This version of Where’s Waldo? has been the rage in Washington. Whenever an extreme statement is found, like Roberts dismissing the “so-called right to privacy,” these advocates insist that Roberts was merely representing a client or voicing the view of the administration. Indeed, some designated hitters make revealingly premature efforts to squelch certain touchy subjects. For example, after I wrote a column about Roberts’s known views in various areas, Professor Ron Rotunda published a scathing letter denouncing me for stating that “Roberts must be against equal rights for women.” The only problem is that my column never referred to equal rights for women. It was like a driver spontaneously denying a murder when a cop pulls him over for speeding.

The hair-trigger responses from people like Rotunda reflect a desire to keep Roberts an anonymous nominee. Rather than declare what Roberts believes, the White House simply denies that any given statement is proof of his views. So long as Roberts does not answer questions, the Republican majority will carry him to the Court. When he was nominated, Roberts was virtually shown the chalk outline of the body of Robert Bork on Capitol Hill for an example of what happens to those who are open with senators about their views.

We do not need, however, to have an unscripted and cathartic moment from Roberts during the hearing to understand his philosophy. Unless Roberts abandons a lifetime of advocacy, his record gives a good basis for predicting his future on the Court. A review of major legal areas shows a jurist who is likely to have few, if any, colleagues to his right on the Court. Indeed, if you shave off Bob Bork’s Mephistopheles beard and give him a few Botox injections, you have John Roberts. He is proof that politics remains primarily visual. Roberts is a handsome, perfectly groomed man who looks like he was raised hydroponically by Karl Rove in the White House basement.

Roberts, I believe, is superbly qualified to be chief justice. I do not want to see him “borked,” and indeed favor some of the doctrinal changes that he may bring. However, I also believe that the attempt to field an anonymous nominee is bad for the system and reduces confirmation to a pretense of process. After decades of 5-4 decisions, a breathtaking number of doctrines hang by a single vote. Roberts should be confirmed in an open and deliberative process, not some version of constitutional three-card monte.

I happen to like much about Roberts and, when I imagine the future, I expect to like him even more in the role of chief justice.

Roberts the Elder could well become a lasting icon for the Court, much respected by his colleagues and the public for his demeanor and style. Where Rehnquist could be slightly prickly in public, Roberts is engaging and open. He lacks the pomposity of Warren Burger and yet holds an obvious and deep affection for the Court as an institution.

The elder John Roberts—say, in 25 years—should be much like the younger John Roberts today, just as Rehnquist, Scalia, and Ginsburg remained largely unchanged with time. He is unlikely to transform as did O’Connor or Blackmun.

As for his voting record, I doubt it will be as understated as his personality. He will be Bill Rehnquist with the stable conservative majority that Rehnquist always wanted but failed to achieve. In this sense, I expect liberals will come to loathe Roberts for his views while liking him for his personality. Roberts should be able to finish the revolutions started by Rehnquist and bring the Court back to a more narrow view of the Constitution and the role of the federal government. For example, on abortion, Roberts will vote to narrow Roe v. Wade and might even vote to overturn the decision entirely. The only reason he would not vote to upend Roe would be out of a sense of judicial restraint, and only after the doctrine had been pruned to its barest essentials. This is precisely what Rehnquist did with Miranda: By the time Rehnquist preserved Miranda as a constitutional rule he had created so many exceptions that it was a mere shadow of its former self.

If Roberts is true to his past, Roe might not be around when he turns 64. During the Reagan administration, Roberts argued for the appointment of pro-life judges and supported a memorial service for aborted fetuses as “an entirely appropriate means of calling attention to the abortion tragedy.” He has referred to Roe as “wrongly decided” and based on “the so-called right to privacy.”

Roberts the Elder will likely be known as the chief justice who curtailed affirmative action and narrowed the scope of anti-discrimination laws. He has repeatedly and consistently railed against racial and gender preferences. As an attorney, Roberts co-authored briefs against court desegregation plans and opposed set-aside programs for minority contractors. In 1995 he said, “You don’t overcome racism by engaging in it yourself.” He has also criticized efforts to require “comparable worth” wages for women as a “radical redistributive concept.” He criticized congressional women seeking such language as adopting a view of “From each according to his ability, to each according to her gender.” Roberts also made controversial statements in 1985 (which he is likely to retract in his hearings) that “some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide.”

He is also likely to be known as a chief who held the line on citizen and prisoner lawsuits. In 1981, he advocated greater challenges on standing to keep some groups out of court and more recently praised opinions that barred environmentalists from suing to protect animals outside of the country. The true Roberts was probably captured in a 1993 law review article when he denounced past public interest litigation as demanding judicial review “at the behest of any John Q. Public who happens to be interested.”

And Roberts the Elder will likely maintain, if not expand, the federalism revolution led by Rehnquist, striking down any statutes that encroach on states’ rights or usurp state authority. This is likely to include a fairly harsh record on environmental statutes. His past litigation, writings, and opinions reveal a fairly antagonistic view of environmental interests, including a strident dissent in an Endangered Species Act case that questioned the very application of such environmental laws to the states.

Finally, in 25 years, the Roberts Court is likely to refashion the meaning of the religion clauses in favor of a greater accommodation of religion. On issues like school prayer and the Ten Commandments, Roberts may have the voting bloc to rewrite and clarify the rules for the separation of church and state. Indeed, Roberts has described the courts as hostile to religion in school cases and has stated that the position of the courts that the Constitution prohibits a moment of silence “or even silent prayer” is “indefensible.”

Roberts wasn’t nominated to be passive or deferential. Since his earliest years as a clerk, he was almost engineered for this moment. Once O’Connor has been replaced by a reliable conservative, Roberts could become a live torpedo in a harbor crowded with 5-4 doctrines—the result of decades of stagnant division that may now be coming to an end. Anywhere Roberts turns as chief justice, he will find cases that can now be reshaped in a more conservative image. Even with a respect for precedent, Roberts was not trained, groomed, and nominated to let this moment pass.

Of course, the fun thing about predicting how things will be in 25 years is that few people will remember to look me up when Roberts receives the ACLU award for lifetime achievement. What should be clear is that the senators have about as much chance of uncovering the true John Roberts as they do of digging up the true Jimmy Hoffa. Short of Congress passing out totem animals and divining rods, John Roberts will be confirmed as a jurist known only to God and the White House counsel.