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In "No More Mr. Nice Guy", Jeffrey Toobin examines how Chief Justice John Roberts is "the Supreme Court's stealth hard-liner" in a detailed and very readable 7,500-word essay in this week's The New Yorker. The article is well worth reading.

Toobin traces Roberts' career as a trustworthy conservative legal footsoldier from his law school years at Harvard to his clerkship to then-Associate Justice William Rehnquist to his years in and out of public service to his first four years at the head of the nation's highest court. Throughout his essay, Toobin reminds the reader that Roberts, born on January 27, 1955, is the youngest person on the Court veering to the right as the rest of the nation, largely, drifts to the left.

While many on the left saw through Roberts' personable nature to see that he was the purest product of the conservative movement, unfortunately not enough Senators did. The conventional wisdom on Roberts is that he is a moderate.

But, Roberts' moderation is his public relations front. "The Chief Justice talks the talk of moderation while walking the walk of extreme conservatism," according to Laurence Tribe, a constitutional law professor at Harvard.

"Many liberals," writes Toobin, "feel that Roberts is far more similar to his conservative colleagues than he appeared to be at the time of his confirmation hearing."

After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

So while the Republican Party as a political force may be on the retreat in most of the country, a single Republican, and one of their brightest and most ingratiating sits at the head of one of our government's three equal branches of power. Toobin predicts, "Roberts will probably have a half-dozen more opportunities" to administer the presidential oath of office.

The first Democratic nominee to the Court in fifteen years will confront what is now, increasingly, John Roberts’s Court. Along with Scalia, Clarence Thomas, Samuel A. Alito, Jr., and (usually) Anthony Kennedy, the majority of the Court is moving right as the rest of the country—or, at least, the rest of the federal government—is moving left. At this low moment in the historical reputation of George W. Bush, his nominee for Chief Justice stands in signal contrast to what appears today to be a failed and fading tenure as President. Roberts’s service on the Court, which is, of course, likely to continue for decades, offers an enduring and faithful reflection of the Bush Presidency.

Potentially a quarter century more of the Roberts Court would be a long-lasting conservative legacy for George W. Bush. So even while the Republican Party's political wing is in a disorderly mess, I get the impression from Toobin's essay that at least conservative judicial philosophy will continue to hinder liberal progress in the United States, although perhaps more subtly through a Roberts lead court, for many years to come.

Roberts is not normally a confrontational justice such as the likes of Antonin Scalia, but as explains Toobin, over the past four years the two justices "have had a dialogue of sorts about how best to address the Court’s liberal precedents." While Scalia agrees often with Roberts' conclusions, he believes the Chief Justice does not go far enough. So when "Roberts wrote a narrow opinion in 2007 holding that the McCain-Feingold campaign-finance law did not apply to certain political advertisements in Wisconsin," Scalia thought Roberts should have "declared the whole law unconstitutional, on free-speech grounds."

"This faux judicial restraint is judicial obfuscation," Scalia wrote of Roberts.

Robert seems to be content with chipping away at legal precedents he and his fellow conservatives dislike. This stealthy approach, by taking just inches at a time, rather than a Scalia-like land grab, seems to be a character trait of Roberts that has served him well through his career. At Harvard Law School, he "stood out as a conservative, though not a notably intense one".

“He was extremely smart,” said Laurence Tribe, the liberal scholar who taught Roberts constitutional law and grew to know him through his work on the Law Review. “He was really very good at being thoughtful and careful and not particularly conspicuous. He was very lawyerly, even as a law student.”

Two years after graduating from Harvard in 1979, Roberts landed a clerkship for then-Associate Justice William Rehnquist. A few months after Roberts began working for Rehnquist, Ronald Reagan was elected president. So at the very moment conservatives regained the White House after a brief four years of being absent and under the employ of Rehnquist, Roberts' "political education began." Toobin writes:

At that early stage of the Reagan era, conservatives had a problem, because there were no institutions where like-minded lawyers could be nurtured; the Federalist Society, the conservative legal group, was not founded until 1982. “Roberts got a lot of attention because he clerked for Rehnquist,” said Steven Teles, a professor of political science at Johns Hopkins and the author of “The Rise of the Conservative Legal Movement.” “Without the Federalist Society, there were not a lot of other ways for the Administration to make sure that they were getting true conservatives. The Rehnquist clerkship marked Roberts as someone who could be trusted.”

In other words, after clerking for Rehnquist, Roberts was a "made man" in the conservative movement.

In 1982, Roberts went on to work in the Reagan administration as Associate Counsel to the President under White House Counsel Fred Fielding; a job he would remain in for the next four years. Three years after leaving the executive branch for private practice, George H. W. Bush appointed Roberts as Principal Deputy Solicitor General. When Bush lost the 1992 election, Roberts' pending nomination to the U.S. Court of Appeals for the District of Columbia Circuit expired without a Senate vote. "So, for Bill Clinton’s eight years in office, Roberts went back to Hogan & Hartson, where, according to his financial-disclosure forms, he made more than a million dollars a year." Then —

Roberts took a direct role in the contested 2000 election, travelling to Tallahassee to assist George W. Bush’s legal team in the recount litigation. He was rewarded for his efforts the following year, when Bush, like his father before him, nominated Roberts to the D.C. Circuit. He was confirmed two years later, and he served there until Bush chose him for the Supreme Court.

Roberts, if anything or anyone is, is Bush's trump card. His interest in politics and his legal thinking has been shaped by architects of the unitary executive from Rehnquist, the Richard Nixon appointee to the Reagan White House to the Bush father-and-son destructive duo themselves.

On issues of Presidential power, Roberts has been to Scalia’s right—a position that’s in keeping with his roots in the Reagan Administration. “John was shaped by working at the White House, where you develop a mind-set of defending Presidential power,” the lawyer who worked with Roberts in the Reagan years said...

Roberts’s solicitude for the President and the military extends to lower-profile cases as well. In Winter v. National Resources Defense Council, the question was whether the Navy had to comply with a federal environmental law protecting dolphins and other wildlife while conducting submarine exercises off California. Roberts said no.

But in no small part, due to the bungling of the nation by the man who nominated Roberts to the Supreme Court, Barack Obama is now president. Toobin points out there are "considerable similarities as well as major differences" between the two men. Significantly, "Obama is the first President in history to have voted against the confirmation of the Chief Justice who later administered his oath of office."

What I find reassuring about our current president is that "Obama did not trust Roberts's heart."

“It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” the Senator said.

And so in the coming quarter century, we Americans will likely have to suffer through many years of a Roberts Court. But, there is hope. While Roberts may have thoughts on how to undo the Court's "liberal precedents", apart from himself, he presides over, "by historical standards, a very old Court." Toobin writes, "there is no disputing that the President and the Chief Justice are adversaries in a contest for control of the Court, and that both men come to that battle well armed."

But with Justice John Paul Stevens now 89 years old and Justices Scalia, Kennedy, Ruth Bader Ginsburg, and Stephen Breyer all in their seventies, the retirement of Justice David Souter may mark the beginning of the end of the hard-to-starboard tilt of the Roberts Court. As Toobin concludes:

Obama has at most one more chance to take the oath of office, and Roberts will probably have a half-dozen more opportunities to get it right. But each time Roberts walks down the steps of the Capitol to administer the oath, he may well be surrounded—and eventually outvoted—by Supreme Court colleagues appointed by Barack Obama.

 
Cross-posted from Docudharma.
 

Originally posted to Magnifico on Fri May 22, 2009 at 08:59 PM PDT.

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