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

By Emily Bazelon
Posted Thursday, June 28, 2007, at 1:43 PM ET
Chief Justice John Roberts. Click image to expand.

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.

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.

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Emily Bazelon is a Slate senior editor.
Photograph of John Roberts by Paul J. Richards/AFP/Getty Images.
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Remarks from the Fray:

I am sick and tired of even stellar journalists continuing to use false political labels, seemingly without first evaluating them. It drives me insane to continually hear what is plainly authoritarian ideology labeled as "conservatism." Frankly, I find it sloppy journalism born of a fear to be branded as biased.

This is not simply a plea for "re-branding" in some goofy attempt to re-wire people's perceptions. It is a plea made not as a silly political strategy of the left or center; it is made because "conservative" is so profoundly inaccurate in both the political sense of the term and its common usage. Using the "conservative" label inaccurately is a blanket acceptance of the rhetoric and PR campaigns of politicians and public figures. Just because someone describes himself or herself a certain way doesn't make it so. When a Klan member says, "I'm not a racist; I'm just defending my heritage," do journalists then refer to the KKK as an organization of Southern Heritage Advocacy?

"Conservative" in its common use implies modesty, humility, caution, and upholding tradition. "Conservative" in its political definition asserts limited government interference, deference of the Federal government to local and state governments, deference to tradition, and reverence for individual rights and responsibility. So, when journalists can tell me what is conservative about ignoring decades of Court precedent, restricting the Constitutional right of individual free speech, restricting individual equity rights in the workplace, restricting the rights of women to control their bodies, and restricting the rights of local school boards to determine their own policies - when you can do that, I'll accept the "conservative" label. Until then, however, let's try for something approaching accuracy, like "authoritarian conservatism" or just plain old "authoritarianism" because contemporary "conservatism" plainly advocates that State or Corporate authority trumps the rights of the individual. There is absolutely nothing conservative in that philosophy, period. Perhaps "authoritarian" seems a bit too impolite or shrill, huh? Well, "racist" is impolite, too, but it's a much more accurate (and honest) description of the Klan than "Southern Heritage Advocate."

Just because some moderates and lefties have bought into this false label and may associate authoritarianism with conservatism, that doesn't mean the label is accurate, honest, or even useful. I beg journalists to abandon politeness in favor of accuracy and honesty. After all, isn't a deferential politeness by the mainstream media what got us into Iraq and sentenced us to eight years of authoritarian rule in the first place?

--dustino

(To reply, click here.)

The real miracle of the Phase 2 conservative movement (after Reagan and since Newt) is that the conservatives have been an amazing collection of raging assholes (DeLay, Malkin, Bush, Cheney, Krauthammer, Lott, Santorum, O'Reilly), attacking honest people often without supporting facts, insinuating dishonesty and criminality where none exists, and most importantly, playing McCarthyite "patriot" and "you're with us or against us" games with lives, reputations and careers.

Yet all the while they have been able to position people who stand up to their lies, greed and incivility as "shrill" or "obstructive" or "engaged in class warfare." And the media, out of fear or in direct complicity, have refused to note the hypocrisy of the methodology of attack-first-and-then-accuse-the-attackees-of-being-defensive.

So what Bazelon is pointing to here is the new go-along-to-get-along paradigm: people try to portray themselves as likeable and reasonable by going along with Republican initiatives, from the utterly foolish and criminal Iraq War, to the tax cuts that impoverish the majority of us for the benefit of a few, to the nomination of Federalist Society members, who have always been extremists, to the federal bench at all levels.

In going along to get along, [liberals] betray the principles that they told themselves and their friends (and students and readers) that they hold most important. There is no excuse for that.

Folks, this is war, War upon the middle class, and war upon democracy, and war upon American interests. And those that go along to get along, no matter their liberal credentials (Peter Beinart) to their centrist good sense (Colin Powell), to their solid intellectual credentials (the fools that endorsed Roberts). When you support your oppressor, the best that can be said for you is that you committed a crime while suffering battered wife syndrome.

And as the Roberts court will tell you sooner or later, being a victim does not excuse you from being held accountable for your crime, and certainly does not entitle you to a remedy.

--Certainly

(To reply, click here.)

The SCOTUS's job? To make the laws of the land bend to the realities of the Constitution. To make sure that the government doesn't overstep it's power in granting, or in taking away rights. Perhaps more people should remember that the courts job is not to create law, only to ensure that laws are Constitutional, and that they are applied in a Constitutional manner.

Yet, this article doesn't speak, at all, to the Constitutionality of Robert's decisions, but only whether they are "liberal" or "conservative" decisions. I think that the truth is that Roberts isn't especially conservative, but Roberts does try to apply the Constitution to law, rather than attempt to bend the Constitution through the law.

That, in fact, is where politics does come into the picture. Liberals aren't upset with Robert's conservative leanings, but with the Courts current failure to create law. Further, liberals are extremely concerned that the Court will throw out those previously Court created laws, and require such decisions as Roe V. Wade to live or die on the basis of their ability to pass as Constitutional amendments. Liberals aren't afraid of Roberts, in other words, they are terrified of our system working as intended.

--FaxMeBeer

(To reply, click here.)

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