Through The Legal Looking Glass--The Nine Gray Eminences

Chief Justice John Glover Roberts was born on January 27, 1955 in Buffalo, New York. He is the son of John Glover Roberts and Rosemary Podrasky, an American-born woman of Czech extraction. His father was a plant manager with Bethlehem Steel. The family moved to Long Beach, Indiana when young John was in second grade. He attended Notre Dame Elementary, and the La Lumiere School, which is a Roman Catholic boarding school in LaPorte, Indiana. He has three sisters--Kathy, Peggy and Barbara.

He completed a five-year Latin studies program in four years, his first notable academic achievement among many to come. He was both the captain of his football team, and an accomplished wrestler, becoming a regional champion. He also took part in choir and drama, edited the school newspaper, and served on the regional athletic council and his school council.

From high school, he went on to Harvard. Again, he ran ahead of the pack, completing the four year history major in three years, and obtaining his baccalaureate degree summa cum laude. His studies in American Constitutional History led him to Harvard Law School. He received his JD magna cum laude. Unlike a certain alleged constitutional scholar with whom we are all familiar, Roberts was made the managing editor of the Harvard Law Review, writing many well-regarded articles himself. Many of his fellow law students distinctly remember him actually accomplishing things while he was editor, unlike the other person I mentioned.

The Chief is married to Jane Sullivan, whom he married in Washington DC in 1996. She is also an attorney and a trustee, along with Roberts's fellow Justice Thomas at the College of the Holy Cross in Worcester, Massachusetts. The Robertses have adopted two children, John and Josephine. The Chief and his wife are both devout Roman Catholics.

Immediately after graduating from Harvard Law, he went on to clerk for a year for Judge Henry Friendly of the U.S. Second District Court of Appeals. From 1980 to 1981, he was the chief clerk for Supreme Court Justice William Rehnquist. From 1981 to 1982,he was appointed by President Reagan as Special Assistant to U.S. Attorney William French Smith. From 1982 to 1986, he went on to serve as Associate Counsel to the President, serving under White House Counsel Fred Fielding.

Roberts entered private practice in 1986 as an associate with the firm of Hogan & Hartson, a prominent Washington DC litigation firm. In 1989 he was tapped by the first President Bush to be Principal Deputy Solicitor General. In 1992, Bush nominated Roberts to the U.S.Circuit Court of Appeals for the District of Columbia Circuit, but the Senate vote never took place, and with Bush's defeat by Bill Clinton, Roberts's nomination expired.

He then returned to private practice with Hogan & Hartson, quickly becoming the head of their appellate department, developing a nationwide reputation for brilliant constitutional advocacy. At the same time, he became an adjunct professor of constitutional law at Georgetown Law School (unlike the other person I mentioned, who with no appellate experience and an invisible academic record at Harvard Law, became a full professor of constitutional law at the University of Chicago). During his tenure with Hogan & Hartson, he argued thirty-nine cases before the Supreme Court, winning twenty-five of them. The most famous case he argued during this time was the United States v. Microsoft. His firm represented eighteen individual states in the litigation.

Roberts also served as a member of the steering committee of my favorite lawyers and constitutional scholars organization--The Federalist Society. He ultimately earned some undying enemies in the Democratic Party when he flew to Florida to advise Governor Jed Bush and the Florida Secretary of State regarding the 2000 presidential election recount. Although he did not argue the case himself later, his advice was utilized by the George W. Bush team successfully before the United States Supreme Court.

In 2001, the second President Bush nominated Roberts for a seat on the District of Columbia Circuit. Typical of their political vendettas, the Democrat-controlled Senate Judiciary Committee, led by Sen. Patrick Leahy (D-VT), refused to give Roberts a hearing. In 2003, the Republicans regained the Senate majority, and Bush resubmitted Roberts's nomination the same day. Roberts spent two years on the Circuit Court, authoring forty-nine opinions, getting dissents in only two of them, and authored three dissents of his own.

In 2005, Roberts became the first new Supreme Court nominee since Stephen Breyer in 1994. Bush was so proud of his choice that he made it in a nationally-televised broadcast from the East Room of the White House. He was slated to replace Justice Sandra Day O'Connor, who was retiring. And then Bush withdrew Roberts's nomination upon the September death of Chief Justice William Rehnquist. Bush and his advisers were strong advocates for Rehnquist's leadership style and jurisprudence, and felt that Roberts, as a former Rehnquist clerk and intimate, was the perfect candidate to replace him. Bush then went so far as to request that the Senate conduct expedited hearings on his nominee so that he would be in place for the opening session of the Court beginning in October.

The hearing was a rough one, not as vicious as the previous Bork hearing or the subsequent Alito hearing, but the Democrats launched vitriolic attacks on Roberts. One of them was so vicious that Roberts's wife, who was in the audience, broke into tears at the unwarranted venom being spewed at her husband. Ultimately the Committee voted the confirmation out to the full Senate by a vote of thirteen to five, with the predictable "no" votes from Ted Kennedy (D-Chappaquiddick), Richard Durbin (D-IL), Charles Schumer (D-NY), Joe Biden (D-Hair Club for Men) and Dianne Feinstein (D-CA). In the Senate vote, Roberts was confirmed by seventy-eight to twenty-two, with all Republicans, one Independent, and twenty-two Democrats voting in favor. All twenty-two negative votes were Democrats.

Roberts is a conservative, "strict constructionist" justice. His Fourth Amendment decisions have held that search and seizure activities must only be reasonable, not perfect. Thus, when the Court in Georgia v. Randolph held a search to be unconstitutional because of the two residents present during the search, only one had consented to the search, he dissented. He dissented both because the decision was a clear departure from precedent with no explanation of why or how it could be distinguished from previous case law, and the majority based its reasoning on "the perception of social custom."

On abortion, Roberts has decided on only one case since joining the Court. He took a stand which was entirely expected, but many may have missed his concurring opinion. The Court held in Gonzalez v. Carhart that the federal prohibition on partial-birth abortion was valid, but on narrow procedural grounds. Roberts indicated in his concurrence that he felt the decision was decided too narrowly and unnecessarily left future abortion cases to review on a case-by-case basis rather than announcing a broad court policy. In his hearings at the time of his nomination he refused to say how he would vote in a case which directly challenged Roe v. Wade. This caused the Democrats to tag him as an abortion opponent when his only legal work on the issue was in carrying out the orders of his bosses at Justice while he was a US Attorney. Accurately, he said he was "a staff lawyer, charged with writing a legal memorandum supporting the [Reagan] administration's point of view."

When asked about stare decisis at the same hearing, Roberts made it clear he supports the stabilizing influence of the principle. Then Senator Kennedy, thinking he was setting a trap, asked how Roberts could support the principle announced in Brown v. Board of Education and support stare decisis as well. Roberts lost no time or composure by explaining what Kennedy should already have known. Stare decisis exists to assist in uniformity of decision-making. When it comes to the decision itself, the Supreme Court is perfectly free to overturn precedent which is clearly constitutionally unsound. Bye-bye, silly question, and bye-bye Plessy v. Ferguson. As Roberts said, "that's not activism, that's applying the law correctly."

Back to his Court opinions, Roberts has been critical of the long line of cases granting power to the federal government under the Commerce Clause. He believes in the intent and wording of the Clause, but says that it has simply become too easy and pro forma for the courts to find a nebulous connection between the federal statute involved and some legitimate reason why the federal government is intruding in the area in the first place. His words: "I think it remains to be seen, in subsequent decisions, how rigorous a showing is needed, and in many cases, it is just a showing. It's not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate? That's a very important factor. It wasn't present in [case citation] at all. I think the members of Congress had heard the same thing in law school, and they hadn't gone through the process of establishing a record in that case...which would support federal intervention in the matter."

And that leads to his overview of federalism in general. "Simply because you have a problem that needs addressing, it's not necessarily the case the Federal legislation is the best way to address it . . . . The constitutional limitation doesn't turn on whether it's a good idea. There is not a 'good idea' Clause in the Constitution. It can be a bad idea, but certainly satisfy the constitutional requirements. And it can be a very good idea, but fall short of what is necessary to establish federal preemption."

As a firm believer in the original meaning of "due process," Roberts has consistently stood for notice and opportunity to be heard for criminal defendants. Thus, despite his conservative views, he found it necessary to vote against his ideological partners on the court in the case of Jones v. Flowers. The liberal majority, along with Roberts, held that before a home is seized and sold in a tax-forfeiture sale, due diligence must be demonstrated and proper notification needs to be sent to the owners.

Roberts has also made his views clear on deference to the acts of Congress. He believes it is the duty of the Court to uphold acts of Congress so long as they do not violate constitutional provisions. Thus he takes considerable pains to point out that it is not up to the Court to rule based on its belief in the potential efficacy of the act, or based on some abstract concept of law which is not contained in the Constitution (such as those pesky umbras, penumbras and emanations, foreign law, or belief in mankind's place in the universe). "The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judge and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic."

He is a free speech purist, but also supports tradition and precedent. Therefore he voted in Morse v. Frederick that a student in public school-related activities does not have the right to advocate recreational drug use on the ground that the right to free speech does not invariably prevent the exercise of school discipline. Therefore, he joined Justice Thomas in adding that it would be an inordinate diminution of free speech to forbid students to have a full discussion of the pros and cons of recreational drug use. He might rule differently if the case became an issue at a public university or college.

Roberts is a reasoned and forthright foe of affirmative action. He opposes the use of race in assigning students to particular schools, including for purposes of maintaining integrated schools in the face of shifting populations. He has carefully crafted his opinions to remain in line with the law in Brown v. Board of Education. He makes it clear that the Warren Court was addressing de jure, "unnatural" segregation for the purpose of favoring or diminishing a particular racial group. He does not accept that a nearly all-white school in a nearly all-white geographical location (and vice versa for a black school in a black location) is in any way a violation of the Constitution. He was very sarcastic about the concept of affirmative action announced by Sandra Day O'Connor when she said she was not sure whether affirmative action was constitutional, but that in another twenty-five years it would be unnecessary (which is what they said twenty-five years ago).

He has not had an opportunity as Chief Justice to address the broad issue directly. But in a more limited case, Parents Involved in Community Schools v. Seattle School District No. 1, he got to take a preliminary shot. Writing for the majority, he said that Brown v. Board of Education was about racial discrimination, not about the de facto racial makeup of a particular neighborhood. His zinger was priceless: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

I normally do an assessment of each Justice and his or her judicial philosophy when concluding a chapter in this series. However, in this case, I will defer to Seventh Circuit Judge Diane Sykes. She described Roberts and his judicial outlook as follows: "His jurisprudence appears to be strongly rooted in the discipline of traditional legal method, evincing a fidelity to test, structure, history, and the constitutional hierarchy. He exhibits the restraint that flows from the careful application of established decisional rules and the practice of reasoning from the case law. He appears to place great stock in the process-oriented tools and doctrinal rules that guard against the aggregation of judicial power and keep judicial discretion in check: jurisdictional limits, structural federalism, textualism, and the procedural rules that govern the scope of judicial review."

Note: This concludes my series on the sitting Supreme Court. I have purposely not discussed Sonia Sotomayor. Although she has been sworn in, she will not take part in any decision-making until the beginning of the fall term in October. It would be unfair to review her when she has not participated in any Court decisions. For articles that Andrew Price and I have done about her in her capacity on the lower courts, check the link to her, either below or under "index" to the right.