Tuesday, September 29, 2009

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.

14 comments:

AndrewPrice said...

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

-- that quote tells me exactly what I need to know about his thinking. This is not a judge who falls for trendy thinking or social engineering. He sees the law the way it's meant to be color-blind and applying equally to all. And that's a very good thing.

ScottDS said...

"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."

I swear this was Alito, not Roberts. I'm probably mistaken. :-)

Andrew -

I don't really follow Supreme Court business but I have encountered that quote before and I agree with it. I might lean to the left on a few things but when it comes to affirmative action, I am in total agreement with you guys.

AndrewPrice said...

Scott, "Affirmative action", aka "benign discrimination" aka "reverse discrimination" is morally despicable and it's destructive.

The only way we will ever move beyond seeing each other as black, white, hispanic or whatever is to make the law colorblind -- move beyond treating people differently. Until that changes, all we will do is continue to breath life into ethnic tensions and anger about injustices, and we keep re-enforcing the stereotypes that minorities are less capable and whites are out to keep them down.

So you're on the right side on this one.

LawHawkSF said...

Andrew: It is nice to hear a very learned judge state in simple, comprehensible, and plain terms a legal principle that the Court has been dancing around for years.

ScottDS: You are not mistaken. It was a minor incident barely mentioned during the Roberts hearings and the press spin. The liberals enjoyed it so much that they did worse to Alito, and his wife was actually shown on camera in tears. The MSM thought that was hysterically funny, and made a much bigger deal of it, so it is not surprising that the Alito incident is the one people remember.

LawHawkSF said...

Mrs. Roberts's tears were not the big highlight of the Roberts hearing. See if you remember what was. The Roberts kids showed up for the hearings. They were dressed the way any proud parent would expect their children to dress for a major event in American history. The press latched onto it, and acted as if the kids had shown up in white tie and tails, and a ball gown. Apparently, they expected the kids of a nominee for Chief Justice to show up in torn jeans, tee-shirts with obscene slogans on them, and baseball caps facing backwards or sideways.

LawHawkSF said...

ScottDS: I've seen the effects of affirmative action too many times. When I was an undergrad at Berkeley, the number of black undergrads was higher than it is today. Nobody ever looked at a black student and thought that he or she was there because of a program that let them in even though they were unqualified. The exact opposite was true. Self-segregation was totally unknown. The only way you got into Cal was your academic record, SAT scores, and your public performance.

Fast forward to my son's application to attend his mom and dad's alma mater. He was quite literally the perfect candidate, academically, socially, athletically and extra-curricularly. He (among many others, of course) was rejected in favor of the likes of Jason Kidd, who could barely spell his own name, had a minor criminal record, but could sure play basketball. Kidd took up valuable space at Cal, wasted everybody's time and money (except for the basketball coach), then dropped out to go make his millions playing a boys game and enhancing his criminal record. Guess what my son thinks of affirmative action? Fortunately, he received early admission to UCLA, and graduated with honors. The ultimate irony is that he did so well in his chosen endeavors that he now owns a beautiful home, high in the Berkeley Hills, looking down on the UC campus.

As a strong believer in the Constitution, I find it nearly impossible to believe that any Supreme Court Justice can really believe that affirmative action is constitutional. But I think it was best demonstrated when Sandra Day O'Connor actually said that she didn't know if it was unconstitutional or not, but it didn't matter since it wouldn't be needed in twenty-five years. If a Supreme Court Justice "doesn't know," how are the rest of us expected to know? Isn't that what they're there for?

Tennessee Jed said...

As always, thank for a great episode of 9 Gray Eminences, Hawk. He is absolutely one of my favorite justices and I loved the way he made the liberal senate bullies look like the invective vermin they are. The m.s.m. journalists who cry about civility seem to conveniently forget Bork, Alito and Roberts hearings don't they?

LawHawkSF said...

Tennessee: The Republicans didn't lay a hand on Sotomayor. If ever there was a nominee who deserved to be ripped to shreds, she was it. The Democrats are masters of invective, and unlike Sotomayor's miserable credentials, Roberts, Alito and Bork all have top qualifications. So all that was left was to make up phony charges and attack their personal lives.

Writer X said...

LawHawk, I've so enjoyed this series and have learned so much. Thank you!

I distinctly remember when Roberts took Kennedy to task about the stare decisis issue. Roberts looked so cool and collected; Kennedy, like he swallowed a cough drop. Priceless. It was a great insight to his demeanor.

Justice Roberts is a class act. I feel very fortunate to have him as Chief Justice.

LawHawkSF said...

WriterX: I'm glad I'm not the only one that saw the look on Kennedy's face when Roberts explained stare decisis to him as if to a not-too-bright child. It was wonderful.

I am a Thomas devotee, a Scalia loyalist, and an Alito fan, but Roberts is the kind of justice I would not be in a panic arguing a case before. When he asks questions of the attorneys, they're always respectful and on point. I've never seen him play "gotcha." Bush made the best decision of his presidency appointing Roberts.

StanH said...

Judge Roberts is a brilliant man who’s right where he needs to be, Chief Justice of the Supreme Court. A seemingly balanced man who made a fan of me as paddled Leaky Leahy, the Swimmer, and the rest of the Barking Moonbats on the Judiciary Committee. Mouth flatulence never beats out wit one on one. Great series Lawhawk, and perhaps a look backwards on some of the pivotal justices in history?

LawHawkSF said...

StanH: I think the greatness of Roberts is his brilliance combined with a gentle nature which would rather persuade than bully. I suspect a few decisions have gone well solely because of the force of his "caring father" attitude. If Obama doesn't get the chance to appoint two more leftist nutcases, and Republicans elect a conservative President next time, this may very well be the Court that brought the Constitution back from the brink of destruction.

HamiltonsGhost said...

It's been a cliche that there are many Jewish attorneys, but during this series I noticed that there are a surprising number of Catholics at the high levels of the courts. Any idea why?

LawHawkSF said...

HamiltonsGhost: I have no idea. But I can tell you one anecdote. A good Catholic colleague of mine once asked one of his professors why the Jesuit law schools were so good. The priest/professor smiled and said "We have to explain our theology. Next to that, the law is easy."

The current makeup of the Court is now five Catholics, two Jews, and one Protestant. Sotomayor is from a Catholic background, and attends church events, but is not known to attend Mass. She has made it very clear that she will not discuss her personal religious views, so perhaps "lapsed Catholic" might fit her best.

I see a conspiracy here. As a Lutheran, I suspect they bumped off Rehnquist, the last Lutheran Justice and the only Chief Justice of my denomination. LOL

About a year ago, Justice Scalia was asked about his Catholicism and how it affected his jurisprudence and those of his fellow Catholics. I think his answer was pitch-perfect: "There is no such thing as a 'Catholic judge.' The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge. Just as there is no 'Catholic' way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic."

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