Supreme Court Justice John Roberts: “doctrinaire conservative”

May 18, 2009 | By | 4 Replies More

The New Yorker has published a detailed article on the track record of Supreme Court Justice John Roberts.  The conclusion is that he is a “doctrinaire conservative.”    Here’s an excerpt:

His jurisprudence, as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

Image: public domain

Image: public domain

But isn’t Roberts simply following the law?

There is an incredible amount of existing legal precedent (thousands of cases have been decided by the U.S. Supreme Court, and many thousands of additional cases have been decided by the numerous federal courts of appeals and federal district courts.  Careful readings of these cases demonstrate that considerable numbers of these legal  holdings conflict in both minor and major ways with one another.  This ever-growing sometimes convoluted body of decided cases is the backdrop the work of judges, and they are charged to follow precedent, except when they choose not to, and–this is a critical point–their breaks from precedent (e.g., Brown v. Board of Education) constitute some of the Court’s best moments.   This backdrop makes for a strange formula for jurisprudential “rigor.”  So let’s not pretend that judges are simply sitting on the bench to “follow the law” as though they were solving binomial equations.  There is immense opportunity to insert one’s own personal biases in a legal opinion, thanks to the many paths offered by precedent combined with human ingenuity.   Recent examples of legal analysis by Jay Bybee (now JUDGE Bybee) would suggest that there is no limitation at all–that legal reasoning is merely a political power exercised by a person wearing a robe.

Lest someone think that this is a hatchet piece on Roberts, I need to point out that I am sympathetic with a few of Roberts “conservative” themes.   As one example, I am highly suspicious of judicial remedies for “racial” discrimination where those remedies impose widespread societal changes based on “race.”  We should be moving away from a belief in “race,” not further legitimizing it. My personal bias is that we need to get to the point where we can all proudly say that we are all human beings or even that “We are all Africans.”

No one denies that Roberts is affable or that he is a lawyer who knows “the law” inside and out.  Based on the convoluted set of existing law, though, combined with the immense discretion available to judges (under the cloak of “follow the law”), lawyers and judges can almost always find principles and cases to support almost any position they care to take.  Throughout the history of jurisprudence, then, recurring questions are how should a judge choose among competing precedent and how should a judge apply that precedent?  The point was illustrated well by Barack Obama, who as a Senator cast a vote opposing the appointment of Roberts:

In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart.


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Category: Civil Rights, History, Law, Politics

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

Comments (4)

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  1. Erich Vieth says:

    Think Progress had this to say about the John Roberts era of the United States Supreme Court:

    Despite Roberts' confirmation hearing promise "to have the humility to recognize that [judges] operate within a system of precedent" and to accept his own "modest role" within this system, the hallmark of John Roberts' Court has been an utter disregard for precedents the Court's conservatives disagree with. Thus, in Citizens United, the Court overruled a twenty-year old precedent to unleash corporate funds on American democracy. In Gonzales v. Carhart, the justices struck down a federal abortion ban despite a Supreme Court decision upholding an identical law just seven years earlier. Thereafter, in Ledbetter v. Goodyear Tire and Rubber, the Court held many women powerless to challenge pay discrimination despite a unanimous 1986 precedent to the contrary. Moreover, in Leegin Creative Leather Prods, Inc. v. PSKS, Inc., Roberts and his allies uprooted a 96 year-old antitrust decision banning price-fixing. And in Parents Involved in Community Schools v. Seattle School District #1, Roberts audaciously claimed that the cherished Brown v. Board of Education decision forbids local school boards from integrating public schools. And in Gross v. FBL Financial Services, the conservative bloc not only stripped many older workers of their ability to challenge age discrimination, but also expressly stated that the Roberts Court is not bound by a prior decision its new members disagree with. Whatever one thinks of these decisions, it's clear that Roberts did not tell the truth during his confirmation hearing when he pledged to be a neutral "umpire."

  2. Rick Massey says:

    As a constitutional law scholar, Obama said it best. If there was ever a question about where Justice Roberts' heart is, Citizens United should pretty much lay that to rest. Justice Roberts is much too intelligent to be unable to distinguish between money and speech. He understands that nothing kicks the little guy out of a poker game faster than changing the rules to allow unlimited table stakes. If the bus driver folds because he can't call the bluff of the oil executive, so be it.

    Justice Roberts understands this perfectly. So he must believe the little guy should never win. He had plenty of precedent going the other way to support a decision in favor of humans over corporations. Virtually all judges follow their hearts when important matters come before them. Their rulings reflect their true feelings. His rulings speak for themselves.

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