Ashish Joshi
Joshi: Attorneys + Counselors
In “The Chief: The Life and Turbulent Times of Chief Justice John Roberts,” award-winning Supreme Court journalist Joan Biskupic presents a compelling biography of a man who is torn between his conservative ideology and a desire to protect the Court’s image and legacy.
Biskupic narrates the story of Roberts’s climb to the pinnacle of the judiciary, beginning with his youth in Indiana.
Roberts was remarkably driven from an early age. As his former history teacher recalled, if there was one word to describe him, it was “focus”: “It’s the first word you’d say about him.”
Biskupic shows how Roberts’s conservative views took root during his formative years at Harvard in the 70s, first at Harvard College and then at Harvard Law. It was a different era, when “women represented just 2 percent of the tenured faculty, and blacks represented 1.4 percent.” Racial incidents were conspicuous.
During Roberts’s time, a law-firm recruiter told an African American student that she was a “risky hire,” because she could be quickly lured away by a big corporation to satisfy the minority “quota,” adding, “the last black to leave [the firm] went to Clorox…Isn’t that funny, a black man going to work for a bleach company?”
On the flip side of the racial debate, Roberts was also exposed to the “reverse discrimination” claims and the Bakke case where the Supreme Court forbade the use of racial quotas in admissions practices but allowed universities to take race into account as one of several factors in assembling a diverse student body.
Roberts avoided direct involvement in the political controversies of the day — Watergate, Vietnam, Roe v. Wade, to name a few — but he wasn’t apolitical. He “experienced a kind of culture shock and reacted against the liberalism dominant in his new surroundings.” At Harvard, “conservatives were like the queers on campus.” People made fun of them, they mocked them as “jokers or losers.”
Roberts was “taken aback.” As he later recalled, “I didn’t certainly view myself as conservative…until I went there and kind of reacted against the orthodoxy that was established there.”
After graduating from Harvard Law, Roberts went on to finish two clerkships: one with the U.S. Appeals Court Judge Henry Friendly and the second with Supreme Court Justice William Rehnquist.
While Roberts later publicly identified with Judge Friendly’s restrained and neutral legal approach, his actual opinions and ideology has aligned more with Rehnquist’s. Rehnquist, as the New York Times’s columnist Linda Greenhouse wrote, “sow[ed] the seed of future opinions in cases that will embody similar issues. This approach gives a tactical advantage to one who would move the Court in a particular direction.”
As Biskupic shows, Roberts has demonstrated “a similar, but subtler, incremental approach, building with each case to achieve broader conservative outcomes.”
In 1981, Roberts became a special assistant to Attorney General William Smith in the Reagan administration. The hours were long — Roberts, nicknamed “Owl,” because of his dark-framed eyeglasses, “toiled…from early morning well into the night” — but the position offered him valuable experience in navigating Washington politics and more importantly, judicial confirmations, including helping prepare Sandra Day O’Connor for her confirmation hearings.
The five years Roberts devoted to the Reagan administration further clarified and crystalized his ideological views. One of his memos from his Reagan-days read: “Real courage would be to read the Constitution as it should be read.”
Roberts’s first nomination to the bench came about in January 1992. He was nominated to the D.C. Circuit by George H. W. Bush. But the nomination stalled in the senate and with the election of Bill Clinton as the president in November 1992, it lapsed.
Roberts turned to private practice and developed a reputation as a superior appellate advocate. As Justice O’Connor later wrote, “no one presented better arguments on a more consistent basis.” He left nothing to chance: “He engaged in as many as ten practice rounds, or ‘moot courts.’” When delivering the argument, “[h]e synthesized the facts of a case into easy-to-follow arguments that he made without referring to his notes.” For good luck, he would tap a foot of the large bronze John Marshall statue on the ground floor of the Supreme Court building.
Eventually, in May of 2003, Roberts was confirmed to serve as a federal judge on the D.C. circuit. In the approximately two years that he served as a federal appellate judge, Roberts’s opinions demonstrated a “crisp, clear writing style,” “vivid imagery,” “whimsical playfulness,” and “clever turns of phrase.”
In 2005, Roberts was interviewed by President George W. Bush as a potential nominee for the Supreme Court. Roberts “approached the interview as he did oral arguments” — methodically and with meticulous preparation. The interview went well and Bush favored Roberts over other candidates.
But, as Biskupic reveals, what sealed Bush’s choice of Roberts, was advice from a younger White House lawyer, who suggested that the president go for Roberts, because he “would be the most effective leader on the Court — the most capable of convincing his colleagues through persuasion and strategic thinking.” The White House lawyer who made the pitch on Roberts’s behalf was Brett Kavanaugh.
Biskupic brilliantly recounts how Roberts’s performed “flawlessly” at his confirmation hearings: “He left behind the cuff- links and portrayed himself as a plainspoken, modest midwesterner.”
He deployed the baseball-umpire analogy that had endeared him to Bush, a former owner of Texas Rangers: “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical…but it is a limited role. Nobody ever went to a ball game to see the umpire.” Roberts’s back and forth with the senators appeared effortless. Subsequent nominees to the Supreme Court were told to study his tapes of confirmation hearings, “a master class on advocacy.”
As chief justice, Roberts was eager to put his personal stamp on Court opinions from the start, but he began slowly, or, as Justice Antonin Scalia described it, with “faux judicial restraint.”
While he strived for unanimity and a less divided Court, certain beliefs superseded his desire for consensus. Race was one such belief where Roberts would not yield. As he wrote in his Seattle School District opinion, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In other words, he advocated the notion of a “color-blind” Constitution. In his view, categorizing people by race, even as a remedy for past bias, was “a sordid business,” counterproductive, and only deepened racial tensions. His critics pointed out that Roberts “was asking the country to pretend that the history never happened.”
One of the fiercest critics of Roberts’s view on race was and remains Justice Sonia Sotomayor. “Race matters,” as Sotomayor wrote in her dissent in Schuette v. Coalition to Defend Affirmative Action, “Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’”
Two decisions that have fractured and defined the Roberts Court are the 2010 Citizens United v. Federal Election Commission and the 2013 Shelby County v. Holder. Roberts’s opinion in Shelby County expounded his long-held views on the failures of racial remedies in America. And as Biskupic notes, it was the first time since the nineteenth century that the Supreme Court struck down a provision of civil rights law protecting the people based on race.
On other occasions, Roberts has been able to bring the entire Court together. In the paired 2014 cases United States v. Wurie and Riley v. California, the Court unanimously ruled that police generally need a warrant before searching the cellphone, and all its contents, of a person who has been arrested.
Will Roberts be the new swing vote in the post-Kennedy Court? Only time will tell.
For now, Chief Justice Roberts—the careful, deliberate, conservative, who “favors white dress shirts, nondescript ties, and gold cufflinks”—is positioned at the center of the Supreme Court in every way.
And as Biskupic writes, “the law will likely be what he says it is.”
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Ashish Joshi is with Joshi: Attorneys + Counselors, Ann Arbor.
