Thursday, May 21, 2009

The politically correct John Roberts

Now, again, it can be told: Chief Justice John Roberts, who is about to finish his fourth Term on the Supreme Court, is more than just an "impartial" umpire determined to reset the law's strike zone so that everyone, from employment discrimination plaintiffs to criminal defendants to opponents of unqualified executive branch power to student miscreants, knows they'll be appearing before a bench committed to the rule of law and not the individual political preferences of the justices. Here's what then-Judge Roberts from the D.C. Circuit Court of Appeals said about a justice's role:

“Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

In the latest New Yorker, Jeffrey Toobin offers a very different portrait of the Court's 17th Chief Justice than the self-portrait Roberts offered of himself when went through his confirmation hearings four summers ago. As it turns out, the Chief Justice has not pursued the modest, humble jurisprudence rooted in tradition, precedent and respect for individual rights he promised the nation. Instead, he has used his power and position to extend the political philosophy of the conservative values that dominated the administrations of Ronald Reagan and the second George Bush. Since coming to the Court, Chief Justice Roberts has never ruled in favor of a criminal defendant, an employee bringing a discrimination or unfair practices claim, an environmental plaintiff or the executive branch's request for unrequitted power. There is much more, and Toobin's piece is thorough and well-written. I generally like Toobin's stuff, and I'm even using his recent book on the Court, The Nine: The Secret World of the Supreme Court, in my summer course on constitutional law and politics as a means to introduce unfamiliar to the justices and the political context in which the Court operates. But what I find frustrating -- no longer surprising or stunning -- is why it takes otherwise very bright people, especially people who follow the Court and the politics that surround it, so long to figure out that judges are appointed, by and large, because of what they believe and not because of their LSAT scores, law school GPA or encyclopedic knowledge of the strike zone, legal or otherwise.

Two years ago, I wrote a piece here called, "You mean John Roberts is really conservative?" What I thought about Roberts, the Supreme Court appointment process and the subsequent gaming around the interplay of values, ideology and politics still stands.

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