John Roberts: Unsurprisingly Conservative

by Brien Jackson

Jeffrey Toobin’s New Yorker article on John Roberts is, on the one hand, quite an interesting profile of the man who may shape the court more than any other justice over the next 30-40 years. But at the same time, there’s something painfully obvious about it. Consider, for example, the passage that seems to be getting quoted most often:

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “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.” 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.

It’s very nice prose, and at first blush it’s a devastating, succint, critique of the court’s “stealth conservative,” but at the same time, it sort of falls apart under the weight of its own conceit. Roberts invocation of umpires as a model for judges wasn’t, for example, developed in a vacuum, nor aimed into the ether, it was intended exactly as a dog whistle for conservative activists and ideologues, a made-for-cable rendering of “strict constructionist” legal theory. Indeed, it’s really not hard at all to imagine, say, Sean Hannity making essentially the same point, albeit probably much less eloquently and with decidedly less charisma. So with that in mind, I don’t think it ought to surprise anyone that a justice who deployed rhetoric straight out of the talk radio world in his confirmation hearing is using made-for-Rush rhetoric on legal issues regarding race, or that Roberts essentially votes the way you’d expect a Justice Hewitt to.

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