Asking the liberals and moderates who supported Roberts' nomination if they're sorry now.

The law, lawyers, and the court.
June 28 2007 1:43 PM

Sorry Now?

What do the liberal and moderate lawyers who supported John Roberts' nomination say today?

Chief Justice John Roberts. Click image to expand.
Chief Justice John Roberts 

This term, Chief Justice John Roberts fully agreed with Justice Samuel Alito in 92 percent of the nonunanimous Supreme Court cases in which he voted. His rate of total agreement was 89 percent with Justice Antonin Scalia and 85 percent with Justice Clarence Thomas. (The stats are courtesy of the good folks at SCOTUSblog; here are some more.) Any hope liberals and moderates had that the Roberts Court would be modest in its ambition were dashed this week with the parade of 5-4 decisions (conservatives win, liberal-moderates lose). Roberts wrote today's decision to scrap two school-district plans that took race into account in sorting students among different public schools. Earlier this week, he wrote opinions that cut back on students' free-speech rights and gutted key provisions of McCain-Feingold campaign-finance reform. He has also been part of the five-justice majority that upheld the federal "partial-birth" abortion law, told Keith Bowles that he could not bring a habeas claim to appeal his 15-year-to-life sentence, because he'd filed three days late—based on the say-so of a federal judge—and precluded Lilly Ledbetter from suing for discrimination because she waited too long to bring suit, never mind that her low pay was ongoing.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

All of which is to say that John Roberts is proving to be an extremely conservative chief justice. Which is what President Bush promised his supporters and what Roberts' lower-court record signaled—see in particular the Guantanamo case Hamdan v. Rumsfeld. Roberts may not go in for rhetorical swashbuckling, but he gets the job for the right done. As Adam Cohen put it in the Times last year, Roberts' votes are the product of his "predictable arch-conservatism."

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And yet some liberal and moderate lawyers and academics didn't predict this at all. These members of the legal literati urged Roberts' nomination, promising that he would be a model of restraint and principle and modesty. Why did they think that then? And how do their arguments on his behalf look now?

One major reason for Roberts' support, especially among the Supreme Court bar, is his skill at relationships. The liberal Washington lawyers who went out of their way to stick up for Roberts were the ones who knew him. (Alito wasn't part of this D.C. world; he also got a lot less love.) As a Supreme Court advocate, Roberts helped Douglas Kendall, executive director of D.C.'s public-interest Community Rights Counsel, represent a client who was trying to limit development around Lake Tahoe. Roberts was doing what lawyers do—making the best arguments he could to win the case.

But Kendall saw more than that. "Roberts' combination of intellect, skill, and open-mindedness should temper, at least somewhat, anxiety about his nomination," he wrote in a Washington Post op-ed, "What Makes Roberts Different," shortly after the nomination.  Georgetown law professor Richard Lazarus roomed with Roberts in law school, so it was natural enough that he'd speak up for his old friend's character. But Lazarus went further. "John is conservative in his political beliefs," Lazarus told CBS in the days leading up to the confirmation hearings. "He is somebody, though, who has not defined his life driven by his politics or driven by his ideology."

George Washington law professor Jeffrey Rosen knew Roberts too, from an interview he'd conducted in 2002. Before the confirmation hearings, he called "the claim that Roberts would move the Court to the right as chief justice … transparently unconvincing." Rosen even ventured that because Roberts "may turn out to be more concerned about judicial stability and humility" than Rehnquist or then-Justice Sandra Day O'Connor, "he might even move the Court to the left." Rosen has since changed his mind about where the court is going in the Roberts-Alito era: In Time next week, he states the obvious about the past term, "[T]he center of the court has shifted several degrees to the right." In this essay, he chooses not to address his previous position that this would never happen.

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