Judging Chief Justice Roberts


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.