Posted by Jonathan Adler:
Toobin on Chief Justice Roberts:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244045057
I have finally had the chance to read [1]Jeffrey Toobin�s recent New
Yorker profile of Chief Justice Roberts. (Ah, the joys of flight
delays.) The premise of the article, �No More Mr. Nice Guy,� is that
Chief Justice Roberts was a �stealth� nominee who is only now showing
his true colors. As with all Toobin articles, it is well written,
engaging, and filled with interesting tidbits. Like much of what
Toobin writes about the Court, it is also infected with a subtle spin
that results in a distorted picture of the Chief Justice and the
Court.
My take on Toobin's piece, after the jump.
([2]show)
At the outset, after a brief setup focused on an oral argument, Toobin
sets forth his thesis that the Chief Justice is far more conservative
than Democratic Senators had any reason to expect. Toobin writes:
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.
There are several problems with this passage. First, there is no
inherent conflict between Roberts� stated claim that he aspired to be
an �umpire� who applies rather than makes the rules, and his fairly
conservative record on the Court. Unlike some of his fellow
conservatives, the Chief Justice has shown relatively little
inclination to create or expand new constitutional rules that would
preclude legislatures from adopting desired policy measures. There are
some exceptions, of course, but thus far the Chief Justice�s
jurisprudence could fairly be described as conservative minimalism.
And although his approach is quite conservative, there is no evidence
that the Chief Justice is doing anything other than calling the law in
each case as he sees it.
Toobin attempts to draw a distinction between judicial conservatism,
on the one hand, and judicial modesty and humility, on the other. This
is a false dichotomy. Judicial modesty need not be moderate (although
it can be). To the contrary, in many contexts, judicial modesty � the
idea that courts do not have all the answers, should defer more to the
political branches and, where possible, should remove themselves from
contentious policy debates � is a quite conservative position. This
sort of judicial modesty � a modern-day equivalent of Alexander
Bickel�s �passive virtues� � is the sort of thing folks on the Left
excoriate all the time as �closing the courthouse door.� Setting aside
the legal merits of this view in any given case, there is no reason we
should expect a �humble� judge to be particularly �moderate.� Further,
if Toobin wishes to challenge Roberts' claim of judicial "modesty," he
would do better to focus on areas in which Roberts' opinions are less
humble and modest, as in Parents Involved, rather than the overall
conservatism of Roberts' jurisprudence.
It is also not true that �in every major case� Roberts has sided with
�existing power relationships.� To substantiate this claim, Toobin
ignores cases in which the Chief Justice has vindicated the rights of
individuals challenging the government. So, in Heller he favored the
individual asserting a fundamental right against the state, in Rapanos
he favored the landowner defendants against the government regulators
and prosecutors, and in two campaign finance cases he supported those
asserting their First Amendment rights over the government. Chief
Justice Roberts may not challenge governmental (or other) authority as
much as I would like, but that doesn�t substantiate Toobin�s broader
claim that he inevitably votes to uphold "existing power
relationships" in important cases.
Later on, Toobin writes:
The Chief Justice has not yet embraced one particular judicial
principle as his special interest�in the way that Rehnquist chose
federalism and states� rights�but Roberts is clearly moved by the
subject of race, as illustrated by his combative performance during
the Texas and New Haven arguments. His concerns reflect the views
that prevailed at the Reagan White House: that the government
should ignore historical or even continuing inequities and never
recognize or reward individuals on the basis of race.
Toobin may be correct that Roberts has a particular interest in race
cases. If so, we may see soon enough. Yet there is also reason to
believe Roberts has taken a special interest in another area:
standing. Roberts has authored an opinion in every major standing case
since joining the Court as Chief Justice save two (Hein v. Freedom
from Religion Foundation and Summers v. Earth Island Institute). He
wrote the majority opinion in Cuno v. Daimler Chrysler and penned
spirited dissents in Sprint v. APCC Services and Massachusetts v. EPA.
He also addressed the standing question in his Parents Involved
plurality and his opinions for the Court in Rumsfeld v. FAIR and
Plains Commerce Bank v. Long Family Land and Cattle Company. I also
suspect he wrote the Court�s per curiam opinion in another standing
case, Lance v. Coffman. Standing is also one of the few issues Roberts
wrote about publicly before joining the Court, authoring a defense of
Lujan v. Defenders of Wildlife in the Duke Law Journal. From this, I
think it�s fair to conclude that standing is an issue of special
interest. His view of standing also simultaneously emphasizes his
judicial conservatism (insofar as limited standing is viewed as a
conservative position) and his judicial modesty (insofar as one sign
of judicial modesty is a desire to have more issues resolved outside
of the courts).
I have a few other quibbles with the piece, such as his description of
Leegin Creative Leather Products v. PSKS as a case in which �the
Justices overturned a ninety-six-year-old precedent in antitrust law
and thus made it harder to prove collusion by corporations,� and that
the now-infamous Ledbetter decision imposed a �seemingly
insurmountable new burdens on plaintiffs in employment-discrimination
lawsuits.� I�d question both accounts.
The Leegin decision held that resale price maintenance agreements
would no longer be subject to a per se rule, thereby eliminating a
populist-era relic from the Court�s contemporary antitrust
jurisprudence. The �96-year-old precedent,� Dr. Miles, was an outlier.
Leegin only �made it harder to prove collusion� if by that one means
that requiring any proof that a minimum RPM agreement harms consumer
welfare is making it �harder to prove.� Under the old rule, such
agreements were illegal even if they enhanced consumer welfare, and we
don�t usually apply the label �collusion� to agreements that enhance
consumer welfare.
As for Ledbetter, Justice Alito�s majority opinion explicitly refused
to foreclose the possibility of applying a �discovery rule� to Title
VII claims. Whether to apply such a rule didn�t matter in Ledbetter�s
case because, as she acknowledged, she did not file suit when first
learning of the pay disparity; instead she waited several years.
Moreover, the decision did nothing to foreclose Equal Pay Act claims.
Even if one thinks the decision was wrong, it�s ridiculous to claim it
erected �seemingly insurmountable new burdens� on employment
discrimination plaintiffs.
Toobin�s article is emblematic of an emerging meme that John Roberts
is far more conservative than anyone imagined when he was nominated.
This is silly. John Roberts confirmation to the U.S. Court of Appeals
for the D.C. Circuit was blocked in 1992 and stalled in 2001 precisely
because Senate Democrats and liberal interest groups knew he was
likely to become a conservative jurist. For the same reason, [3]22
Senators voted against his confirmation (including [4]some who now
implausibly claim they were misled; presumably if they knew how
conservative Roberts would be, they would have found a way to vote
against him twice).
Roberts was confirmed despite the clear indicia of his ideological
leanings because he was among the most eminent appellate advocates of
his generation, a man of impeccable credentials and obvious brilliance
who ran intellectual circles around his Senate inquisitors. It also
did not hurt that he had avoided making political enemies or making
inflammatory statements and was replacing another conservative, his
mentor William Rehnquist. Had there been a way to stop him at an
acceptable political cost, Senate Democrats and their interest group
allies would have.
As Chief Justice, John Roberts has been precisely what one should have
expected: a conservative judicial minimalist who would like to reduce
the Court�s role in the nation�s political life. While his
confirmation has not produced a notably conservative court, his
overall conservative approach to the law has not been a surprise.
([5]hide)
References
1.
http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin?currentPage=all
2. file://localhost/var/www/powerblogs/volokh/posts/1244045057.html
3. http://www.c-span.org/congress/roberts_senate.asp
4. http://www.politico.com/news/stories/0309/20560.html
5. file://localhost/var/www/powerblogs/volokh/posts/1244045057.html
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