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 Slate senior editor and the Truman Capote Fellow at Yale Law School. She is 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."

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.

In Rosen's initial prediction, you can see another reason for Roberts' appeal with moderate academics: Supporting him was a way to signal that you thought the debate about who should be on the court ought to be about judicial temperament rather than ideology and vote counting. Roberts wouldn't twist precedent, professors like Cass Sunstein of the University of Chicago wagered. He'd carry the torch of judicial modesty: Judges shouldn't reach beyond the facts of a case to settle big questions, they should hesitate to strike down laws passed by Congress, they should know their place as the least-dangerous branch. Praising Roberts for his lack of "bravado and ambition," Sunstein wrote in the Wall Street Journal pre-confirmation, "Opposition to the apparently cautious Judge Roberts seems especially odd at this stage."

So, what do they say now? When I e-mailed them yesterday to ask how they felt about their past support for Roberts, Rosen and Lazarus politely declined to say. (Lazarus is worried about being boiled down to short and misleading quotes; Rosen says he's planning to write about this himself.) I haven't heard back from Kendall. (Update: Here's his response, and mine to him.) Sunstein offered this, "I'm surprised that Roberts has shown no unpredictability at all; in the big cases, he's been so consistent in his conservatism. I thought that he was too careful a lawyer to be so predictable!" His point, which he expands on here, is that because minimalists take each case as it comes and attend closely to precedent, they sometimes reach conclusions that you wouldn't expect from them. Roberts has done none of that. Take the abortion case: The court in 2000 struck down a state statute banning a form of late-term abortion. The logical next step was to strike down the federal ban. Instead, the opinion Roberts joined unconvincingly sidestepped the earlier decision and upheld the new law.

In the end, Roberts' approach isn't leading him to vote differently than Thomas and Scalia, the justices with the "ideologically driven" reputations. Yes, he disagrees with them about whether to heave over precedent rather than dance around it—and he has felt the Wrath of Scalia  as a result. But as Walter Dellinger and Dahlia Lithwick have so expertly explored in Slate this week, there's nothing principled or restrained about overruling cases "while pretending you are not." The reassurances to the left about Roberts' virtues look pretty empty this week. And just wait until Roberts becomes a court veteran. The longer he's there, the less relevant keeping or chucking past decisions will be, and the more he'll build, from case to case, on the opinions he has written himself.

In those preconfirmation days in 2005, there was one more argument for broad support for Roberts and Alito. Benjamin Wittes, a member of the Washington Post editorial board when it backed both of Bush's picks, reminded me of it in an e-mail this morning. He has no regrets about his support for Roberts, because he expected to disagree with him on key votes and thought he should be confirmed nonetheless. "Presidents have a legitimate right to move the courts and the principal check on this power is not the confirmation process but, rather, a certain ideological diversity of presidents over time," he writes. You can't argue over the president's power. But you can ask whether smart and influential people who disagree with a president's plans for the court need help him along. It's a good question, anyway, for the next time around.