By David Von Drehle
Once a year, as another December gives way to a chill January, Chief Justice John Roberts rereads a poem published in 1749 by the great writer, moralist and late-night conversationalist Samuel Johnson. Roberts began the ritual in the 1970s as an undergraduate at Harvard, where he was one of many students taught to revere Johnson by the master biographer Walter Jackson Bate.
It is an odd pairing, not least because Roberts comes off as upbeat as a roomful of Rotarians, while Johnson, despite his vast accomplishments–including singlehandedly compiling the first comprehensive dictionary of the English language–was haunted by the inevitability of disappointment. The poem, “The Vanity of Human Wishes,” is a devastating reflection on remorseless fate. “Life protracted is protracted Woe,” the poet says.
Roberts, by all appearances, is fate’s darling: wealthy, handsome, at the pinnacle of his profession. Having recovered from a strange but evidently benign seizure this summer at his vacation home in Maine, the young chief no doubt sees protracted life as pretty good. (At 52, Roberts is 35 years younger than the court’s oldest Justice, John Paul Stevens, and is surely the first Chief Justice whose schedule has included back-to-school night at his children’s grade school.) His combination of keen intelligence and undeniable charm is such that another of his college professors, the liberal lion Laurence Tribe, continues to extol Roberts’ “wisdom” even as he laments the conservative course the Roberts court has taken.
So picture the chief at New Year’s–this man who has it made, settled into his comfortable chair in his big house in the wealthy Washington suburb of Chevy Chase, Md. He’s reading, maybe for the 30th or 35th time, this intricate, almost overwhelming poem about how nothing in this world can be counted on to turn out right. What’s the meaning of this annual discipline? Perhaps that the conservatism of John Roberts goes much deeper than mere politics. That he favors authority and tradition while distrusting reforms and revolutions because he believes in the ancient notion that it is human nature to screw things up. The image of the Supreme Court as a great righter of wrongs, ingrained among liberals by the stirring cases of the Warren Court–school desegregation; one man, one vote; right to counsel; and so on–has no power over a judge so rooted in the conservatism of the 18th century, of Samuel Johnson and Edmund Burke, a mind-set always focused on the fact that even well-intended changes often go awry.
In which case, no one should be surprised that Roberts has turned out to be an uncompromising conservative on a court split 4 to 4 on ideology, with a fifth conservative, Justice Anthony Kennedy, deciding case after case according to his own self-dramatizing muse. When Roberts was picked to be the nation’s 17th Chief Justice, he talked a great deal about the need for the fractious court to find more coherence and common ground, to wage fewer ideological spats on the pages of unnecessary separate opinions. Some wondered if this was an offer on his part to split the difference between the rival camps, but no one wonders anymore. In two terms, Roberts has not taken a single position on a high-profile case that you would not expect a darling of the conservative Federalist Society to take.
Republican Senator Arlen Specter of Pennsylvania, chairman of the Judiciary Committee in 2005, when Roberts was confirmed, was so annoyed by some of the Chief Justice’s opinions last term that he threatened to investigate whether Roberts had misled the panel. But Roberts has told friends he stands by every word. He wasn’t talking about compromising on ideological principles, he explains. He was talking about conducting disputes and expressing outcomes in the voice of a durable institution–not as nine voices of nine headstrong pundits.
So much for human wishes. Roberts, of all people, ought to have been more circumspect in trumpeting his plans to reform the vociferous court. His ambitions have so far been in vain. The warring factions of the Roberts court–and their pocked and smoking battlefields–have made his talk of self-effacing harmony seem obsolete. After a brief honeymoon of unanimous opinions in obscure cases, it is the same four Justices on the right and the same four on the left in one high-profile case after another, with Kennedy determining the law. Bombast, rhetorical excess and dueling opinions are thick as Pompeian ash.
Yet there is something strange about all this heat and division. As the dust rises and the opinions, concurrences and dissents pile up, the court turns its attention to ever smaller cases related to ever narrower points of law. There is, it seems, an inverse relationship between the passions expressed in judicial writings and the import of the cases that inspire them. In the midst of these battles, no one seems to have noticed that the stakes have diminished. This trend–a steady shrinking of the judicial role in public policy and a handing over of issues to the states–is consistent with Roberts’ conservative philosophy. And it points to an obvious question about the highest court in the land. How much does the Supreme Court matter anymore?
The Incredible Shrinking Court
The irony is that the Court’s ideology is playing a dwindling role in the lives of Americans. The familiar hot-button controversies–abortion, affirmative action, the death penalty, police powers and so on–have been around so long, sifted and resifted so many times, that they now arrive at the court in highly specific cases affecting few, if any, real people. And it’s not clear that Roberts wants to alter that trend. His speeches on the judicial role suggest a man more interested in the steady retreat of the court from public policy than in a right-wing revolution. Unless the Roberts court umpires another disputed presidential election (à la Bush v. Gore in 2000–a long shot, to say the least), the left-right division will matter mainly in the realm of theories and rhetoric, dear to the hearts of law professors and political activists but remote from day-to-day existence. What once was salient is now mostly symbolic.
For example, in 1954 the Supreme Court decided a set of cases challenging racial segregation of schools. Brown v. Board of Education changed the lives of millions, beginning with the students in the affected school districts and radiating throughout the country. Compare that with the race-and-schools cases decided by the Roberts court last term, which affected at most a few hundred students.
In 1973 Roe v. Wade dramatically altered the abortion options of most American women. By contrast, the abortion case decided last term staked out an equivocal position on a specific procedure that, according to abortion-rights advocates, is rarely used.
A single death-penalty decision, Furman v. Georgia, in 1972 struck down more than 30 state laws and spared some 600 prisoners. This year the Roberts court will hear a case asking whether death is an excessive punishment for the rapist of a child. There is only one such prisoner on death row in the U.S.
Of course, symbols matter. Court cases dealing with Executive power over Guantánamo detainees will directly affect relatively few people, but such cases help strike the philosophical balance between security and human rights that is relevant to the entire nation and to America’s place in the world. As Harvard professor Frederick Schauer pointed out in an influential recent law-review article, however, “most of the court’s agenda lies some distance from the nation’s.” Compounding this is the fact that the court is tackling fewer cases than at any other time in the past half-century. Last term’s output of just 68 decisions was the lowest since 1953. Court watchers and even the Justices themselves aren’t sure why the docket is so small. Nor do the Justices have a plan for picking up the pace. The U.S. is the world’s most litigious society, but our lawsuits aren’t sexy enough to interest the Justices of the Roberts Court. We’re not that into them, and they’re not that into us.
The Dryest Court in the Land
John Roberts not only has an abiding philosophy, but he also has a temperament. He is a technocrat of appellate law and a groupie of Supreme Court culture. He clerked for the late Chief Justice William Rehnquist and became one of the most prominent members of the Supreme Court bar as head of appellate practice at the law firm Hogan & Hartson. Roberts argued 39 cases before the court–which meant studying the personalities of Justices to whom he would direct his arguments and identifying the questions that might pique their intellectual fancy.
This makes him a perfect representative of a highly technocratic and specialized court. The Roberts Court exemplifies a striking change in the anthropology of the high tribunal. For much of the institution’s history, Justices arrived from diverse backgrounds. Some were distinguished lawyers in private practice, such as Louis Brandeis and Lewis Powell. Some were presidential advisers–like Roger Taney, James Byrnes and Abe Fortas. Dwight Eisenhower put Earl Warren in the job after the then Governor locked up California for Ike in 1952. There have been relatively obscure state-court judges like William Brennan and Sandra Day O’Connor, law professors like Felix Frankfurter and even a former President, William Howard Taft. On the court that decided Brown, only one Justice had come up from the federal courts.
Today’s court includes a woman and an African American, but in other ways it is far less diverse than in the past. All the Justices were promoted from the federal courts of appeals. Most of them have backgrounds as law-school professors or as veterans of the intellectual realms of the Justice Department–the Solicitor General’s office or the élite Office of Legal Counsel.
That these Justices so often find their attention captured by discrete cases that pirouette on a narrow point of law suits their shared temperament. They are like priests, schooled from an early age in the orthodoxies, mysteries and controversies of the constitutional faith. Many of them have been enfolded from an early age in the ideological apparatus of the right or the left. As young Justice Department lawyers in the early days of Ronald Reagan, Roberts and Justice Samuel Alito played on the same volleyball team, and both men were quickly marked for big things and nurtured for the bench. Justice Ruth Bader Ginsburg’s cocoon was the American Civil Liberties Union. Stephen Breyer’s inculcation came on Senator Edward Kennedy’s Judiciary Committee staff.
An ordinary citizen visiting the court on an oral-argument day is likely to feel as though she has wandered into a Vatican conference room filled with adepts in Augustinian theology debating arcane questions in hurried Latin. The Justices are scarlet-capped cardinals; the law clerks are the brilliant new seminary graduates, their razor minds undulled by actual experience; the lawyers at the dais are the theologians commissioned to assist in plumbing the sacred texts.
The Gloves Come Off
Opposite Roberts’ desk in his paneled chambers is a door that leads to the Supreme Court conference room, where in order of seniority the Justices discuss cases. It is a small space for such robust egos and large minds, but by all accounts, the exchanges are unfailingly cordial.
But if the Justices are polite in conference, the muzzles come off when they set pen to paper. For many years, the sharpest tongue on the Supreme Court belonged to Justice Antonin Scalia, whose stinging, highly quotable and sometimes quite personal dissents made him a hero to conservatives back when they weren’t winning all the time. Now that they are, his operatic style has spread. You never know anymore, as you read an opinion, when the case law is going to give way to aggrieved wailings and self-righteous asides. Even Roberts, whose opinions are characterized by clear prose and occasional sports analogies, has been known to indulge from time to time.
Take the schools case from the 2006-07 term. On June 28, as the term was ending in a burst of 5-to-4 decisions, the court ruled on a controversy involving public schools in Seattle and Jefferson County, Ky. Parents had sued to end policies that classified children by race and–occasionally–used this data in determining which school students would attend. The goal of the programs was to make schools racially diverse even if neighborhoods were not.
The court has been deciding cases in this realm since before Roberts was born. As you might expect, given all that history, the unresolved issues were rather narrow. Author Richard Kluger once wrote of Brown, “Probably no case ever to come before the nation’s highest tribunal affected more directly the minds, hearts and daily lives of so many Americans.” All these years later, the Seattle and Kentucky cases affected “a few handfuls” of students in Seattle, according to lower court findings, and fewer than 1 out of 20 school assignments in Jefferson County.
Apparently, firing a popgun requires a lot more rhetoric than loosing a thunderclap. The unanimous court in Brown needed just 14 calmly crafted pages to deliver its ruling. The Roberts Court devoted 178 pages, in five separate opinions, to its narrow resolution of the smaller questions. And what did the Justices say in all those pages? Little, if anything, new. As the Rehnquist Court held in 2003, schools may not use simple racial classifications as the determining factor for admitting students. Administrators in Seattle and Jefferson County were advised to find more nuanced ways to achieve diversity.
The opinions in the case featured page after page of rich and exhaustive legal reasoning, befitting the intellectually dazzling court. Justice Clarence Thomas reiterated his often expressed opposition to affirmative action of all kinds, this time in 36 pages. Justice Stevens delivered a relatively terse ad hominem attack on the majority and offered his nonbinding belief that “no Member of the Court that I joined in 1975 would have agreed with today’s decision.” (The other eight are dead, so this couldn’t be confirmed.) Kennedy offered an airy critique of both sides of the argument.
Meanwhile, Roberts and Breyer churned out the lion’s share of the verbiage, writing for and against the court’s ruling. Each strove to wrap the case in the lustrous legacy of Brown. “Before Brown,” Roberts intoned, “schoolchildren were told where they could and could not go to school based on the color of their skin,” and now these schools are doing the same. Not true, countered Breyer. Indeed, “to invalidate” those policies “is to threaten the promise of Brown,” he warned.
The inescapable conclusion, for anyone with the fortitude to read the entire tome, was that each faction of the court wanted the public to believe that the other side was soft on racism and imperiling one of the monuments of American justice. All based on a case that broke little new ground and affected few, if any, people.
A sense of proportion is among the defining qualities of a judge. Yet the Roberts Court so far is better known for making symbolic mountains out of real-life molehills. Roberts’ first written dissent, published six months after he joined the court, seemed to accuse the majority of making the world safe for wife beaters. The case at hand dealt with a fillip in the vast edifice of Fourth Amendment law governing police searches. To wit: What if a husband and wife are together at their home and the wife invites the police in to search for her husband’s drug paraphernalia but the husband says no? Is the consent of just one spouse sufficient? Previous courts had handled the slightly different instance in which one spouse is sleeping, as well as the slightly different instance in which the wife gets the drug paraphernalia and hands it to the police. This case simply resolved the small number of instances in which both Bickersons are at the door together.
That this is an intriguing philosophical puzzle was evident from the opinions–six of them–totaling 48 pages. In places, they read like the midnight bull session of the world’s smartest law students. But when Roberts warned that the decision would effectively seal battered women in their homes with the police locked outside, he sent Breyer and Justice David Souter to their keyboards to write yet more pages establishing the long settled fact that police are allowed to enter a home to stop domestic violence, with or without consent.
Even soft-spoken Ginsburg belted out an aria last term. The decision to uphold a federal ban on so-called partial-birth abortions provoked a speculative outburst from the legendary women’s rights advocate. The ban, she declared from the bench, “and the court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court–and with increasing comprehension of its centrality to women’s lives.” Someday we’ll know whether the right to abortion will be chipped to nothing by the Roberts Court–or whether, as some legal theorists predict, the issue fades away with the arrival of further advances in contraception. As for the actual decision that provoked Ginsburg, it’s a stretch to think that it will be central to the lives of women.
Heartfelt disputes have been a part of the court forever, but that doesn’t mean the Justices have always treated one another this way. When Oliver Wendell Holmes Jr. famously dissented from the Supreme Court’s 1905 ruling rendering governments nearly powerless to regulate working conditions–for decades one of the most consequential cases in history–he needed just three paragraphs to say his piece. He was piercing but entirely civil and expressed sadness that he felt compelled to write at all: “I regret sincerely that I am unable to agree with the judgment in this case.”
Benjamin Wittes, a fellow at the Brookings Institution, is among the court watchers distressed by the bellicose tone of some recent decisions. He points to the once rancorous Washington Circuit Court of Appeals as an example of an ideologically divided panel that has managed to find its way back to civility. “It’s not clear yet if John Roberts understands that that achievement requires the judges to give something up,” Wittes says. “Namely, excess rhetoric.” Even some Justices express concern on occasion. The newest of the nine, Alito, has confided that he finds the rhetoric dismaying, and he recently noted during a question-and-answer session at Pepperdine School of Law that it can be almost impossible to slip in a question among all the speechifying by his colleagues during oral argument.
Heading into the Second Inning
The Chief Justice has been encouraging people not to make too much of the court’s divisions. A lifelong baseball fan, he turns again to a sports analogy. A single term in the life of the court, he likes to say, is like a single at bat in a baseball game.
But with voting rights, the death penalty, Guantánamo detainees and, in all likelihood, gun control on the docket this term, there will be plenty of fuel to heat up the rhetoric again. The question is whether Roberts and his colleagues will put away their matches.
No one knows better than Roberts how difficult this will be. Many of these Justices seem to seek the spotlight–the hotter, the better. Thomas’ headline-making memoir, thick with grievances, drowns out the substantive work of the court. Other Justices prefer to give speeches, barely disguised as questions, from the bench or to jet around the globe to conferences and panel discussions.
As a clerk for Rehnquist in 1980, Roberts was assigned to conduct research for an article on the power of a Chief Justice to set the court’s tone. He found an essay in which Frankfurter scoffed at the very notion. Every Justice “is his own sovereign,” Frankfurter wrote; you can’t expect Justices to get along just because a new chief smiles at them. Rehnquist’s article concurred.
A quarter-century later, John Roberts still wants to believe that something more is possible. A Chief Justice ought to aspire to persuade his colleagues “to be open to the considered views of the others,” as he explained in a 2006 speech at Georgetown University. Roberts added, “There will, of course, be divisions on the court, and those cannot and should not be artificially suppressed.” Still, “working toward broader agreement should be one of [the] shared aims” of all Justices.
It should be–but so far, it isn’t. That’s the story of the Roberts Court, a tale of the gap between should be and is.
With reporting by Text by Jeninne Lee-St. John
