‘The Roberts Court’ captures an important transformation
At his confirmation hearings for the position of chief justice of the United States, John G. Roberts Jr. parried skeptics with a reassuring metaphor: “Judges are like umpires,” he memorably testified. “Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical to make sure everybody plays by the rules. But it is a limited role.”
Senators were charmed by that modesty and impressed by Roberts’ undeniable brilliance, but his chief justiceship has hardly been a model of restraint.
The Roberts court has aggressively recalibrated the nation’s laws in the areas of race, guns and political speech — three of the four cases that form the core of Marcia Coyle’s “The Roberts Court: The Struggle for the Constitution.” Roberts has signaled disdain for affirmative action — “It is a sordid business,” Roberts wrote in one case, “this divvying up by race” — despite generations of case law upholding the practice. He and his colleagues have been similarly cavalier with campaign finance, where its most unpopular ruling, Citizens United, displayed stunning ignorance of American politics though defensible fidelity to free speech.
No area belies Roberts’ assertions of judicial modesty more clearly than the court’s new approach to guns. Under the leadership of Justice Antonin Scalia, the court in District of Columbia vs. Heller for the first time held that the 2nd Amendment protects an individual’s right to bear a weapon rather than hinging that right on its relationship to a militia.
That may have been right as a matter of law — and the ruling has been broadly misinterpreted as prohibiting regulation of guns when, in fact, it specifically countenances restrictions on gun ownership — but it certainly was not an act of restraint. It overturned the District of Columbia government, relied on a shaky reading of history and ignored decades of prior court rulings.
Because of that, Heller has been roundly criticized — by conservatives. As federal judge Richard Posner said, “it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.” Posner compared the Heller decision to Roe vs. Wade.
So much for Roberts as umpire.
Coyle is a veteran Supreme Court correspondent, trusted by those who practice there and admired by fellow journalists. It’s no surprise then that “The Roberts Court” is richly analytical and meticulously careful. It captures the two-step process that transformed the court under Roberts, first with his appointment and then with the more consequential one that followed.
When Roberts came to the court in 2005, he replaced Chief Justice William H. Rehnquist, for whom Roberts clerked, so his appointment did not significantly alter the ideological balance of the bench. As Coyle observes, the Roberts court thus really began with the departure of Sandra Day O’Connor and the arrival of her replacement, Samuel A. Alito Jr. Though both are Republicans — O’Connor was named by Ronald Reagan — she was a moderate, and Alito is anything but.
It is his vote that has pushed the court sharply to the right, and, especially when joined by Anthony M. Kennedy, given that wing of the court its five votes in many of the areas that Coyle examines.
Not always, however. The fourth of Coyle’s case studies analyzes the challenge to President Obama’s healthcare law. Here we see a different Roberts, tacking away from his conservative allies and finding a novel way to uphold the healthcare law. His four conservative colleagues, again breaking with a long line of precedents and history, concluded that Congress improperly exceeded its authority under the Commerce Clause in approving the law; Roberts agreed but found that the healthcare mandate, which is enforced by a penalty, was a constitutionally permitted act of taxation. He thus managed to assert new limits on Congress while still upholding the law.
Coyle’s book is even-handed and full of smart analysis, but there are no stunning revelations, and it’s not really an inside account of the court. Although a number of the justices spoke to Coyle, they don’t say much. They brag of their regard for one another and insist that politics never enters their decision-making — plausible but unlikely assertions and certainly self-serving. One justice, unnamed, tells her that a particular case “was terribly difficult.” Another, also unnamed, remarks on Justice Ruth Bader Ginsburg’s appearance at the court the day after her husband died. “It was so hard,” this justice reports, “but Ruth is just so strong.” Why, one wonders, did these justices need the protection of anonymity to be sympathetic or banal?
One consequence is that Coyle leaves some unanswered questions. The issue of how Roberts came to break from his conservative colleagues on healthcare, for instance, has been the subject of furious speculation, and Coyle does not resolve it. She reports the rumors that he initially sided with the conservatives and then changed his mind, causing intense friction among the justices. And though she dismisses the possibility of a long-term rift, she never gets to the bottom of those deliberations or explains what really happened over those weeks.
That’s disappointing but not fatal. Coyle’s shrewd reading of the cases is supplemented by skillful reporting on those who practice before the court. Lawyers candidly discuss strategies and rivalries with Coyle, and, through them and the court’s public deliberations and opinions, the Roberts court comes into focus.
It’s not the modest court that its chief once proposed; to the contrary, it is assertive, relevant and a bit scary — and worthy of this useful book.
Newton is The Times’ editor-at-large and the author of “Justice for All: Earl Warren and the Nation He Made.”
The Roberts Court
The Struggle for the Constitution
Simon & Schuster: 416 pp., $28
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