Geoffrey R. Stone is the Edward H. Levi distinguished professor of law at the University of Chicago.
As Joan Biskupic observes in her book “The Chief: The Life and Turbulent Times of Chief Justice John Roberts,” after Republicans’ refusal to confirm President Barack Obama’s Supreme Court choice, Merrick Garland, and Trump’s appointment of two fiercely conservative justices, Neil M. Gorsuch and Brett M. Kavanaugh, the Supreme Court is “now Roberts’s in name and reality.”
Although Roberts consistently maintains that the court is not a political body, and although he insists publicly that “the justices do not advance political positions,” Biskupic concludes that, in his decision-making in the most important and ideological cases, Roberts has all too often “engaged in the partisanship he claimed to abhor.” Moreover, although Roberts’s public persona seems very easygoing and congenial, Biskupic reveals that his top-down style has often “rankled” his colleagues on the court.
Like Biskupic’s previous books about Justices Sandra Day O’Connor, Antonin Scalia and Sonia Sotomayor, “The Chief” offers an extraordinarily insightful, thoughtful and accessible analysis of Roberts’s personal life, professional career, judicial experience and approach to constitutional interpretation. It is essential reading for anyone who truly wants to understand this pivotal moment in Supreme Court history.
Biskupic, who has known Roberts for more than 20 years, sat down with him for seven interviews totaling 20 hours for her book. She was therefore well-positioned to offer often stunning insight into Roberts’s life and thinking both on and off the court.
In the first half of “The Chief,” Biskupic traces Roberts’s upbringing, his experiences in college and law school, and his work in the Reagan administration, private practice and in the two Bush administrations. As an adolescent, Roberts attended a Catholic boarding school, at which the students were required to go to daily chapel and Sunday Mass. While there, he wrote an editorial for the school newspaper objecting to any change in the boys-only admissions policy, arguing that “the presence of the opposite sex in the classroom will be confining rather than catholicizing.”
Roberts excelled at Harvard College and Harvard Law School, and he then served as a law clerk to Judge Henry Friendly, one of the most distinguished judges in the nation, and then to Supreme Court Justice William H. Rehnquist.
Thereafter, Roberts, who was deeply enamored of President Ronald Reagan, took a position as special assistant to William French Smith, Reagan’s attorney general. As Biskupic notes, with some dismay, “a straight line can be drawn from Roberts’s positions on voting rights, affirmative action, religion, and abortion rights in the 1980s to his expressed views from the center chair at the Supreme Court after his appointment in 2005.”
After leaving the Reagan administration, Roberts moved into a lucrative career as an appellate lawyer, but then Kenneth W. Starr, President George H.W. Bush’s solicitor general, enticed Roberts to serve as his deputy, raising “Roberts’s visibility among powerful conservatives.” Biskupic reports that, in this role, Roberts sought to “persuade the Supreme Court to limit judicial oversight of previously segregated systems” and worked hard to urge the court “to give the states significant leeway to restrict abortion.” Roberts “abhorred the fact that Roe v. Wade allowed for the termination of fetal life,” Biskupic says.
When Bush left office in 1993, Roberts returned once again to private practice. During the 2000 presidential election, though, he was enlisted to help George W. Bush by assisting in the case Bush v. Gore. Shortly thereafter, Bush nominated Roberts to the U.S. Court of Appeals for the District of Columbia Circuit. As Biskupic notes, although Roberts “did not want to be viewed as a member of the hard right,” he would not have been nominated “if he had not won” the imprimatur of the Federalist Society, with which he was “ideologically aligned.”
Four years later, President Bush nominated Roberts to serve as chief justice of the United States. During his confirmation hearings, Roberts famously maintained that “judges are like umpires”; their job is simply to call balls and strikes, not to take political positions. The Senate voted 78-22 to confirm Roberts.
The second half of “The Chief” focuses on Roberts’s performance as chief Justice. One of Biskupic’s more surprising observations is that Roberts’s relations with other justices have at times been quite difficult. Indeed, over time, serious “personal conflicts” have emerged, and some of his associates think “he is not always acting in good faith [and] that he is not an honest broker.” In recent years, Roberts and Sotomayor, in particular, “found themselves in a disagreement that quickly became personal,” especially on issues involving race. Biskupic explains that Roberts simply does “not consider racism to be as prevalent or as intractable a problem as many of his contemporaries,” both on and off the court.
Although in a few cases Roberts has “set aside his ideological and political interests on behalf of his commitments to the court’s institutional reputation,” most notably in his vote to uphold the constitutionality of the Affordable Care Act, Biskupic concludes that, in almost every case with important political and ideological implications, “he did not entirely shed his partisan thinking once he donned the black robe.” As she documents, in decisions involving such issues as gerrymandering, the Voting Rights Act, the death penalty, campaign finance regulation, abortion rights, separation of church and state, and workers’ rights, a five-member conservative majority, including Roberts, has “discarded or reinterpreted” “long-standing precedents” to reach their desired decisions.
In Citizens United, for example, the Roberts court, in a 5-to-4 decision, “rolled back more than one hundred years of regulation designed to provide a check on the power of money in elections.” As Biskupic observes, the Roberts court’s decisions in the realm of campaign finance have all been “decided by 5-4 votes along ideological lines that reinforced the appearance of a nakedly political institution.”
And then there is the issue of race. While in the Reagan Justice Department, Roberts “fervently argued that the 1965 Voting Rights Act should be narrowly interpreted, a view that followed from his opposition to measures that protected groups of people based on race or ethnicity.” In Shelby County v. Holder, decided in 2013, Roberts’s opinion for the 5-to-4 majority “marked the first time since the nineteenth century that the Supreme Court struck down a provision of civil rights law protecting people based on race.”
Although President George W. Bush had signed into law the provisions of the Voting Rights Act invalidated in Shelby County, noting “the many pernicious methods that had been used to disenfranchise blacks,” Roberts insisted that the problems that “the Voting Rights Act was designed to correct no longer existed.” As Biskupic observed, not only was Roberts’s argument “specious,” but his decision in Shelby County “sharply reduced the ability of African Americans and other minorities” to vote and “capped Roberts’s decades-long effort . . . to limit the reach of the Voting Rights Act.”
Roberts leads the Supreme Court at a critical moment. For the first time in history, the court is divided 5 to 4 not only along ideological lines, but along partisan lines as well. That is, all five justices in the highly conservative majority were appointed by Republican presidents, and all four justices in the more liberal minority were appointed by Democratic presidents. Thus, there is a serious danger that on all the issues that have bitterly divided the justices over the past half a century, the court will divide sharply along partisan lines.
Such a state of affairs will seriously undermine the fundamental integrity of the court itself. The whole point of relying on judges and justices to decide fundamental questions of law is that they are doing their best to apply the law in a neutral and fair-minded manner. Although they may disagree sharply about questions of constitutional interpretation, their disagreements should be on intellectual rather than partisan lines.
As we look to the future, if the five Republican-appointed justices, under Roberts’s leadership, persist in interpreting the Constitution in ways that further the interests and policies of the Republican Party, they will fundamentally undermine the credibility of the Supreme Court as a central institution of American democracy. As Biskupic observes, Roberts “now sits at the exact center, the determinative center, of the law in America.” He is in a position to lead the court “in his own image,” she says, adding: “The law will likely be what he says it is.” Let us hope that he understands the stakes and does not destroy the credibility of the Supreme Court and his own place in history.
The Chief
By Joan Biskupic
Basic. 421 pp. $32
