Judging Chief Justice Roberts

Damon W. Root | May 19, 2009

Jeffrey Toobin has a long profile of Supreme Court Chief Justice John Roberts in the latest New Yorker. There's plenty to disagree with in Toobin's characterizations of Roberts and his fellow justices, but this passage gets a few things right:

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.

It's hard to imagine Roberts joining Justice Clarence Thomas's dissent in the medical marijuana case Gonzales v. Raich, for instance, where Thomas stayed true to his professed federalist principles (unlike Justice Antonin Scalia, who sided with expansive federal power). And as Radley Balko observed last year:

[Roberts and Justice Samuel Alito] aren't libertarian judges. They're judges who defer to police and prosecutors on criminal justice issues, who would put broad restrictions on your ability to sue government agents who have wronged you, and who embrace the Unitary Executive, essentially the belief that when it comes to foreign policy and national security (and a number of other issues), the president's powers are unlimited, absolute, and unchecked by either Congress or the courts. That isn't an exaggeration.

Comments

|5.19.09 @ 4:40PM|#

"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."

I recall there being a case called Heller that was a big deal. If I am not mistaken Roberts sided with the individual and against the government that was taking away that person's rights.

"Roberts has served the interests, and reflected the values, of the contemporary Republican Party."

No shit. He was a Republican appointee. What the hell does Toobin expect? Would he ever write such a sentence about Breyer or Ginsburg? Toobin is such a tool.

|5.19.09 @ 4:48PM|#

Regardless Toobin is a tool.

|5.19.09 @ 4:52PM|#

What's funny about Roberts is that I keep forgetting he's Chief Justice. That didn't happen when Rehnquist had the job.

Paul|5.19.09 @ 5:03PM|#

It's hard to imagine Roberts joining Justice Clarence Thomas's dissent in the medical marijuana case Gonzales v. Raich, for instance, where Thomas stayed true to his professed federalist principles

I still say Thomas is the most interesting (and hopeful) judge, and the one to watch...

JP|5.19.09 @ 5:07PM|#

Toobin wrote a good book on the O.J. trial. (Though not as rantalicious as Vince "Helter Skelter" Bugliosi's book on the trial.)

But that was before Toobin became yet another professional masturbator TV "pundit."

|5.19.09 @ 5:10PM|#

"""No shit. He was a Republican appointee. What the hell does Toobin expect? Would he ever write such a sentence about Breyer or Ginsburg? Toobin is such a tool."""

Wasn't Souter a republican appointee?

I agree that Roberts reflects the ideology which Bush wanted. No shit indeed. But Roberts is more of a tool than Toobin.

|5.19.09 @ 5:14PM|#

"Wasn't Souter a republican appointee?

I agree that Roberts reflects the ideology which Bush wanted. No shit indeed. But Roberts is more of a tool than Toobin."

Yes Souter was. And Souter lied his way onto the court completely misrepresenting what he was. Once on the court Souter became the exact opposite of what he claimed to be.

Roberts isn't a tool. Roberts has never been anything other than a conservative justice. You don't like it, too fucking bad. I don't like Beyer and Ginsburg. But it is a free country and they are free to vote as they like. That doesn't make them tools. What makes Toobin a tool is his acting shocked that Roberts is a Republican. As if no one has any right to disagree with him. Fuck Toobin.

IceTrey|5.19.09 @ 5:19PM|#

You know what's funny is that there is no limit on the number of Justices on the court. It's only tradition that sets the number at 9.

Tacos mmm...|5.19.09 @ 5:27PM|#

Yes Souter was. And Souter lied his way onto the court completely misrepresenting what he was. Once on the court Souter became the exact opposite of what he claimed to be.

Considering how little Souter actually seemed to enjoy the job I think it unlikely he lied to get the position. I think it more plausible that he actually moderated his position after taking office, and this small leftward drift was enhanced in the public perception by a sharp rightward shift in the Republican party.

Paul|5.19.09 @ 5:49PM|#

You know what's funny is that there is no limit on the number of Justices on the court. It's only tradition that sets the number at 9.

Uhm well, yeah, ok. Sort of like we don't actually have the right to freedom of speech, it's just sort of there by tradition.

Ok, bad example. Let me try again...

Sort of like two Senators from every state is really just done by tradition.

In the Judiciary Act of 1869, Congress set the number of Associate Justices to 8. Add the Chief Justice, that makes nine. So I'm not sure what you mean by "tradition".

|5.19.09 @ 5:54PM|#

I dont know how to really feel about Roberts. He seems like the idea of confusing people. He sides with the people when it came to the DC gun case but at the same time he has no problem with the expansion of the executive. I really would like to see how he will rule on a Church State Seperation case in order to make a decent judgement call on him.

the innominate one|5.19.09 @ 6:06PM|#

John - you're right, Roberts voted with the majority in Heller. That's one counterexample. Any others?

Brandon|5.19.09 @ 6:10PM|#

Toobin's incessant, use of the, comma makes his piece, nearly, unreadable.

Also, I suspect the reason he went into journalism and TV punditry is because he was a shitty lawyer. He doesn't analyze Roberts' technical application of the doctrines and precedents that are relevant in each case. He just skips to whether or not the outcome of that application does right by blacks, or women, or the poor, or whatever constituency Toobin thinks should never lose a court case. That's not law. That's politics.

|5.19.09 @ 6:26PM|#

We can have as many SC justices as the president requires to serve the people!

ktc2|5.19.09 @ 6:27PM|#

LB,

Let me clear it up for you. Think how your typical right wing extreme nutjob (joe farrah / rush limbaugh) would vote and that will predict Roberts vote perfectly every time.

Another lawyer|5.19.09 @ 7:03PM|#

I suspect the reason he went into journalism and TV punditry is because he was a shitty lawyer.


from Wikipedia on Toobin:

He went on to become a law clerk and work as an associate counsel to Independent Counsel Lawrence E. Walsh during the Iran-Contra affair and Oliver North's criminal trial, before becoming an Assistant U.S. Attorney in Brooklyn.

Not a typical career trajectory for a shitty lawyer. I think he doesn't analyze the "technical application of the doctrines and precedents that are relevant in each case" because he knows that anyone who doesn't live & breath that stuff (con law professors, basically) will screw it up.

Syd|5.19.09 @ 8:15PM|#

Paul's right, but IceTrey has a point. Congress sets the number of Associate Justices and can increase or decrease it by statute. If they wanted to increase the number of Justices to 15 they could, like FDR wanted to in the 1930s.

picassoIII|5.19.09 @ 8:32PM|#

Paul wrote:
I still say Thomas is the most interesting.

So true, when he was nominated i couldn't help think "token". Impressed now.

With Roberts you wonder how he would have gone on Kelo...

Mike M.|5.19.09 @ 8:34PM|#

Wasn't Souter a republican appointee?

As were the rather moderate O'Connor and Kennedy.

So when was the last time a democratic president put a justice on the high court that didn't hew almost completely to left-wing orthodoxy, anyway?

|5.19.09 @ 9:22PM|#

Incidentally, this post was mistitled. It should've been "The Dread Justice Roberts."

Say, "Dread Justice" would make a cool band name.

robc|5.19.09 @ 9:52PM|#

a sharp rightward shift in the Republican party.

Que? It looked leftward to me? Did I miss something, didnt we just finish off 8 years of a socialist, warmongering president?

Ray Gardner|5.19.09 @ 10:11PM|#

I used to take more comfort in the fact that the justices were balancing each other at least, but as we move towards more state control, I see the balance slipping towards the state.

Kelo really surprised me, and with Obama being anointed as he has been, I see the possibility of Roberts and Obama actually working in some kind of scary synergy to the detriment of my rights.

|5.19.09 @ 10:56PM|#

"""Roberts isn't a tool. Roberts has never been anything other than a conservative justice"""

"They're judges who defer to police and prosecutors on criminal justice issues, who would put broad restrictions on your ability to sue government agents who have wronged you, and who embrace the Unitary Executive, essentially the belief that when it comes to foreign policy and national security (and a number of other issues), the president's powers are unlimited, absolute, and unchecked by either Congress or the courts."

Is that your definition of a conservative judge? It wouldn't be mine.

MJ|5.19.09 @ 10:59PM|#

"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."

That is a lazy way of examining a justice's voting record. It screams that it does not matter what the merits of the cases were, all that matters is what classes of people were decided against. If that accurately reflects what Toobin see as how the law should be decided, his views are more worrisome than Robert's particularly if this what Obama's emphasis on empathy means.

B|5.19.09 @ 11:31PM|#

"...Roberts has sided with the prosecution over the defendant, the state over the condemned..."

So fucking what. The assumption that a convicted criminal should be looked at as the de facto "little guy" deserving of some special consideration, regardless of the actual circumstances of the case, is stupid and simplistic in the extreme. Basing an analysis of a guy's judicial record on such bullshit is totally fucking meaningless and should be dismissed as superficial, which is what Toobin's drivel always is.

And it is amazing that every time one of these liberal clowns (excuse the redundance) does one of these fucking pieces on Roberts or Scalia or Thomas and they breathlessly tell us how slavishly they toe the Republican Party line, they neglect to mention the voting records of Ginsberg, Souter, Stevens and Breyer and how they mirror the interests of the Democratic Party.

B|5.19.09 @ 11:34PM|#

"Wasn't Souter a republican appointee?

As were the rather moderate O'Connor and Kennedy."

And don't forget to mention John Paul Stevens. He was appointed by a Republican, Gerald Ford in this case, as well.

|5.19.09 @ 11:50PM|#

When did a dem president nominate a moderate, fair, intelligent justice? and who was it?

Mike|5.20.09 @ 1:06AM|#

"So when was the last time a democratic president put a justice on the high court that didn't hew almost completely to left-wing orthodoxy, anyway?"

Byron White--and that was a long time ago.

I have no doubt that whoever Obama appoints will be a total tool, but I'm sure Toobin will praise her for her "empathy" towards the "disadvantaged".

Elemenope|5.20.09 @ 5:46AM|#

Earl Warren was appointed by a Republican, too. And Harry Blackmun, who authored Roe v. Wade.

"So when was the last time a democratic president put a justice on the high court that didn't hew almost completely to left-wing orthodoxy, anyway?" Byron White--and that was a long time ago.

Considering there have only been three justices appointed by a Democrat since White (Stevens, Breyer, Ginsburg), that is not saying a whole lot.

Pendulum|5.20.09 @ 5:58AM|#

Considering there have only been three justices appointed by a Democrat since White (Stevens, Breyer, Ginsburg), that is not saying a whole lot.

Stevens was appointed by a Republican, Ford.

Breyer doesn't quite "hew to left-wing orthodoxy", by the way. In fact, he deviates from it on many of the cases where left-wing orthodoxy and libertarianism coincide.

Breyer is part of the "Pragmatist Four" of Roberts, Kennedy, Alito, and Breyer (formerly including O'Connor and Rehnquist), in contrast to the Formalist Five (the rest of them). You can see the Pragmatist Four siding with the government in cases like Apprendi, and recently Arizona v. Gant.

Elemenope|5.20.09 @ 6:13AM|#

Stevens was appointed by a Republican, Ford.


Good catch. It makes the point even stronger that statements to the effect of "modern Dem judges are left-wing ideologues" are somewhat silly, due to small sample size.