Roberts the Elder

John Roberts has an understated personality, but his record will be all torpedo.

Most of the cases of mistaken identity above have a fairly common denominator: The nominee did not have a well-articulated judicial philosophy before joining the bench. Notably, justices like Blackmun, Brennan, White, Stevens, and O'Connor moved only gradually to the opposite wing of the Court, as they developed their own approaches to the law. Indeed, Sandra Day O'Connor never truly found a consistent philosophy and remained a legislator at heart, dictating the outcome of cases without much concern for either consistency or principle.

Roberts is no Sandra Day O'Connor—and that is to his credit. Like many young lawyers in the Reagan years, he entered the law with a clear conservative mission. He cut his teeth as a clerk for William Rehnquist and then as a government attorney in the Reagan administration. He has held consistent and profoundly conservative views for decades. In this sense, he is more like his mentor Rehnquist as well as Antonin Scalia and Ruth Bader Ginsburg. They all came to the Court after years of advocacy marked by well-articulated legal views. Roberts is likely to change the Court, but the Court is unlikely to change Roberts.

Reporters and commentators have been poring over 50,000 pages of documents from Roberts's career—seeking to find the true John Roberts. In the meantime, the White House has organized a phalanx of conservative lawyers to pounce on anyone who suggests they've found evidence of his actual views. This version of Where's Waldo? has been the rage in Washington. Whenever an extreme statement is found, like Roberts dismissing the "so-called right to privacy," these advocates insist that Roberts was merely representing a client or voicing the view of the administration. Indeed, some designated hitters make revealingly premature efforts to squelch certain touchy subjects. For example, after I wrote a column about Roberts's known views in various areas, Professor Ron Rotunda published a scathing letter denouncing me for stating that "Roberts must be against equal rights for women." The only problem is that my column never referred to equal rights for women. It was like a driver spontaneously denying a murder when a cop pulls him over for speeding.

President George W. Bush announcing the nomination of John Roberts for Chief Justice, September 5.
photo: White House photo by Paul Morse
President George W. Bush announcing the nomination of John Roberts for Chief Justice, September 5.

The hair-trigger responses from people like Rotunda reflect a desire to keep Roberts an anonymous nominee. Rather than declare what Roberts believes, the White House simply denies that any given statement is proof of his views. So long as Roberts does not answer questions, the Republican majority will carry him to the Court. When he was nominated, Roberts was virtually shown the chalk outline of the body of Robert Bork on Capitol Hill for an example of what happens to those who are open with senators about their views.

We do not need, however, to have an unscripted and cathartic moment from Roberts during the hearing to understand his philosophy. Unless Roberts abandons a lifetime of advocacy, his record gives a good basis for predicting his future on the Court. A review of major legal areas shows a jurist who is likely to have few, if any, colleagues to his right on the Court. Indeed, if you shave off Bob Bork's Mephistopheles beard and give him a few Botox injections, you have John Roberts. He is proof that politics remains primarily visual. Roberts is a handsome, perfectly groomed man who looks like he was raised hydroponically by Karl Rove in the White House basement.

Roberts, I believe, is superbly qualified to be chief justice. I do not want to see him "borked," and indeed favor some of the doctrinal changes that he may bring. However, I also believe that the attempt to field an anonymous nominee is bad for the system and reduces confirmation to a pretense of process. After decades of 5-4 decisions, a breathtaking number of doctrines hang by a single vote. Roberts should be confirmed in an open and deliberative process, not some version of constitutional three-card monte.

I happen to like much about Roberts and, when I imagine the future, I expect to like him even more in the role of chief justice.

Roberts the Elder could well become a lasting icon for the Court, much respected by his colleagues and the public for his demeanor and style. Where Rehnquist could be slightly prickly in public, Roberts is engaging and open. He lacks the pomposity of Warren Burger and yet holds an obvious and deep affection for the Court as an institution.

The elder John Roberts—say, in 25 years—should be much like the younger John Roberts today, just as Rehnquist, Scalia, and Ginsburg remained largely unchanged with time. He is unlikely to transform as did O'Connor or Blackmun.

As for his voting record, I doubt it will be as understated as his personality. He will be Bill Rehnquist with the stable conservative majority that Rehnquist always wanted but failed to achieve. In this sense, I expect liberals will come to loathe Roberts for his views while liking him for his personality. Roberts should be able to finish the revolutions started by Rehnquist and bring the Court back to a more narrow view of the Constitution and the role of the federal government. For example, on abortion, Roberts will vote to narrow Roe v. Wade and might even vote to overturn the decision entirely. The only reason he would not vote to upend Roe would be out of a sense of judicial restraint, and only after the doctrine had been pruned to its barest essentials. This is precisely what Rehnquist did with Miranda: By the time Rehnquist preserved Miranda as a constitutional rule he had created so many exceptions that it was a mere shadow of its former self.

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