Campaign 2008

More
jurisprudence
columns

Investigate Now, Pardon Later
It's not quite time to let bygones be bygones.
Dahlia Lithwick
posted July 24, 2008
Crimes and Misdemeanors
Slate's interactive guide: Who in the Bush administration broke the law, and who could be prosecuted?
Emily Bazelon
posted July 24, 2008
Crimes and Misdemeanors
The law, lawyers, and the court.
Emily Bazelon
posted July 24, 2008
Take Your Paws off the Presidency!
Does the Bush administration have a secret succession order that bypasses Congress?
Bruce Ackerman
posted July 15, 2008
Chatter in the System
The New War Powers Commission suggests bold new "consultation."
Dahlia Lithwick
posted July 12, 2008
Search for more jurisprudence articles
Subscribe to the jurisprudence RSS feed
View our complete jurisprudence archive

jurisprudence: The law, lawyers, and the court.

Goody Two ShoesJohn Roberts is too nice to be crazy.

By Dahlia Lithwick
Posted Tuesday, Aug. 16, 2005, at 3:52 PM ET

Listen to this story on NPR's Day to Day Listen to this story on NPR's Day to Day.

Listen to the podcast audio version of this story here, or sign up to get Slate’s free daily podcasts.

Don't drink, don't smoke—what do you do?

One fun game that Supreme Court reporters like to play when they're out on maternity leave is called "Who Smoked Pot," in which one speculates about which, if any, of the current Supreme Court justices at some point in the very distant past availed themselves of the opportunity to take a little toke out behind the barn. Some of the justices are easy: William Rehnquist would have lectured his roommates for getting high, and Antonin Scalia would have gone one step further and narked on them. David Souter can never have known anyone capable of procuring anything stronger than ginger ale for him. Which is why my money would be on Stephen Breyer—but only if he mistook a joint for a celery boat or something.

I am enormously confident, however, that John Roberts has never smoked pot. And I know this because I knew guys like him in college and at law school; we all knew guys like him. These were the guys who were certain, by age 19, that they couldn't smoke pot, or date trampy girls, or throw up off the top of the school clock tower because it would impair their confirmation chances. They would have done all these things, but for the possibility of being carved out of the history books for it.

I used to really hate those guys, but Roberts has brought me around.

My sense that Roberts has been preparing for next month's confirmation hearings his whole life was shored up by a glance at the new memos released by the Library of Congress yesterday. As early as 1985, Roberts was fretting about how federal government records disclosed to Congress before confirmation hearings could tank a nomination. Apparently, according to today's Washington Post, "[h]is former Justice Department colleague, William Bradford Reynolds, had just been denied promotion to assistant attorney general, partly because Congress had obtained provocative memos Reynolds had signed." So, Roberts was wary: "We should take whatever steps are necessary to ensure the general opening of files to Hill scrutiny ... does not become routine," Roberts wrote, noting elsewhere, and rather presciently, that, "By 2001, Hill staffers need only go to the Reagan Library to see any internal White House deliberative document they want to see." Roberts has known for 20 years that even his Post-it Notes were going to be read by the world someday.

The memos released yesterday reveal that the young Roberts was indeed the Reagan White House's dream come true. A forceful advocate of school prayer, Roberts found legal support for court-stripping, derided the exclusionary rule, rejected the idea of attempting to bridge the gender pay gap through a theory of "comparable worth," and felt pretty comfortable labeling abortion "a tragedy." But Roberts was also careful and savvy: He unequivocally rejected the possibility of the White House offering clemency for abortion bombers (take that, NARAL!) and urged that court-stripping legislation, while legally defensible, was "bad policy." And he rather prophetically insisted that Reagan have nothing to do with formally endorsing Michael Jackson.

In short, John Roberts didn't want the White House to do anything reckless and stupid that would look bad in the history books.

So, today's Washington Times story on Roberts' adolescence, including revelations by Roberts' former roommate, is hardly surprising: "As far as engaging in the sort of nefarious activities stereotypical of teenagers, Mr. MacLaverty said, 'In those days, the big thing was sneaking off into the woods to sneak a smoke. John was never anywhere near any of that.' "

And that's why John Roberts doesn't alarm me much. The same conservatism that leads him to decry judicial overreaching in the privacy and civil rights contexts is part and parcel of a larger conservatism that distrusts reckless grandiosity. The same quality, in short, that kept Roberts from sneaking off into the woods to smoke may be the same quality that keeps him from torching Roe v. Wade. The Clarence Thomases of this world—men unafraid of tearing down centuries of constitutional scaffolding in order to impose their own theories of constitutional construction—are far scarier to me. Those are the guys who probably did barf off the clock towers in college; guys with the hubris and drive to change the world without going through the confirmation process first. Scalia doesn't care what anyone thinks of him, and Thomas is happiest when he's provoking outrage. Roberts cares a lot about looking temperate, and that isn't a bad thing in a judge.

Roberts' often radical early memos are hard to reconcile with his subdued, even cautious, temperament, and yet sorting out which will control is the essential project of next month's confirmation hearings. Reconciling them becomes slightly easier when you see Roberts as a broadly cautious guy, ever trying to balance the need for judicial humility and restraint against his own humility and restraint toward the judiciary. Roberts is not a fan of broad strokes and big drama—not from the judiciary and not from himself. I don't know if we can take him at his word about the compelling value of stare decisis (the notion that precedent is not overturned cavalierly), but I do know that while a guy afraid of smoking pot or endorsing Michael Jackson may not be the guy you want to do body shots with, he's probably not a constitutional wrecking ball, either.