Toobin on John Roberts
Jeffrey Toobin offers a surprisingly hard-edged assessment of the Chief Justice for a New Yorker article:
Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” 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.
Which I guess is fine. Except insofar as judging I don’t approve of isn’t fine. But I expect presidents I don’t approve of to appoint judges I don’t approve of. What’s not fine was the kind of bizarre slobbering over Roberts from the establishment that preceded his confirmation. It would be one thing if the sensible center had just been saying “look liberals, you have to suck it up; Bush won the election so he’ll get to appoint right-wing judges.” Instead, we were treated to gushing coos over Roberts’ brilliance and moderation for which there was never any evidence.
Nobody wrote any prominent articles slamming him as an intellectual mediocrity who owed his advancement to a certain generic white male handsomeness and his role as a loyal foot soldier in a powerful political movement. I’m not sure it would have made any practical difference in the world if commentators had taken a more realistic view at Roberts back then. But still, folks who called this all wrong would be a lot more credible if they would make some kind of account.
47 Responses to “Toobin on John Roberts”
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May 19th, 2009 at 2:32 pm
“Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”
…and many scare-quote “moderates” in the Democratic party.
May 19th, 2009 at 2:35 pm
This quote is incorrect and misleading…
Roberts sided with the individual in the case for the right to bear arms case vs. Washinton D.C. Roberts said that schools were wrong when they wouldn’t allow white kids into public school in Seattle and Louisville. I really am beginning to question Toobin’s research. It sounds like more of opinion, than fact.
May 19th, 2009 at 2:36 pm
You know, I had noticed that Roberts had that kind of bland “handsome” quality to him, a lot like the way that lots of supposed “middle America” politicians have. I suppose I am used to that being an advantage for those running for office–I mean, you have to be on tv, and it’s better to be thought of as good-looking than not.
It never occurred to me that his would help a *judge* advance. But I think you’re right. Maybe this is the inverse of the reaction against Sotomayor. I mean, some people we can just “see” on the bench, acting all Supreme.
May 19th, 2009 at 2:44 pm
it sure would have helped if dems had had the guts to ask him about his involvement in the “brooks brothers riot” down in florida, where he helped lead a mob that basically shut down a recount through physical intimidation.
imagine a democratic nominee who’d been involved in a violent incident where a mob had been banging on doors and windows, demanding that vote counting be stopped.
think there would be any chance that such a nominee would even be considered for any type of judgeship, let alone a seat on the supreme court?
instead, dems punked out, and in a totally perfunctory fashion, went through only the most basic motions with him.
democrats who accepted the BS that he was only too happy to offer are as much to blame as anyone.
his nomination and confirmation is almost as shameful as thomas’.
May 19th, 2009 at 2:48 pm
Nobody wrote any prominent articles slamming him as an intellectual mediocrity who owed his advancement to a certain generic white male handsomeness and his role as a loyal foot soldier in a powerful political movement.
Where are you getting “intellectual mediocrity” from? Is this a reference to the issues some people have raised about Sotomayor?
Because I think it is extremely dangerous to discount Roberts’s intelligence and strategic abilities. On the other hand, I remain convinced that over time Roberts may prove more flexible than, say, Alito, particularly if he would otherwise find himself stuck in a minority.
And if this was a reference to Sotomayor–I think some of the rhetoric was overblown, but as I noted at the time, it really shouldn’t be enough that someone is a capable Court of Appeals judge. To counter Roberts, Obama needs to appoint someone equally strategic in her thinkings. And while Sotomayor may be that person–I’m not yet in a position to offer a personal evaluation–as of now there are some other people on Obama’s rumored short list who I would be more confident about (including my personal guess as to who he will pick, Diane Wood).
May 19th, 2009 at 2:56 pm
DTM, I think Matt was making a contrast with Sotomayer, but it was sloppily written.
It would be one thing if the sensible center had just been saying “look liberals, you have to suck it up; Bush won the election so he’ll get to appoint right-wing judges.”
To be fair, this is more or less what happened with Alito. At least part of it was that Roberts replaced a right-winger on the court while Alito replace a moderate.
May 19th, 2009 at 3:01 pm
It sounds like Roberts has been consistently and remarkably empathetic to the interests and concerns of those who supported his nomination.
May 19th, 2009 at 3:02 pm
John Roberts looks like a regular squeaky clean Charlie Church. And he has a “beautiful family.” End of story. You can share the opinions of raving neo-fascists, but as long as you don’t rave like a neo-fascist and you can speak in soft, measured tones and look respectable, YES YOU CAN! Ask Bill Kristol.
Roberts was one of the most extreme “presidentialists” in the Reagan administration — and that is saying a lot. He’s an ideologue if there ever was one. But he knows how to disguise it. Roberts and Alito make Scalia look like a moderate.
I agree that presidents who I disagree with are going to nominate justices I disagree with. However, I expect Supreme Court justices to actually believe in democracy rather than some form of elective dictatorship.
May 19th, 2009 at 3:08 pm
One has to love how tortured Robert’s reasoning is – the sickness of using Brown v. Board of Education to undermine a plan to combat de facto segregation is telling. It is the kind of imaginative re-writing of precedent that would have conservatives up in arms if it didn’t meet their goal of pretending racism and its effects are a thing of the past.
Kings and commoners alike are forbidden to sleep under bridges – to the nutcase right (and their loony libertarian counterparts) this is perfectly sensible.
May 19th, 2009 at 3:09 pm
“The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society.”
This view of the law is strange. Like we should just keep a scorecard of “Powerful” vs. “Weak.” Nevermind what the law says or should be, if a judge sides too often with Team Powerful, then he’s a mean old conservative. Bad Conservative, Bad!
But like Alex said, Toobin probably just selected a few cases he disagreed with, and wrote a hit piece of an article without really thinking it through.
May 19th, 2009 at 3:17 pm
MY: “… an intellectual mediocrity …”
From the linked article:
At Harvard Law School, Roberts continued to excel, in an even more competitive atmosphere. “He was extremely smart,” said Laurence Tribe, …
May 19th, 2009 at 3:17 pm
Right Brad, Roberts has been even-handed and it has just been a complete coincidence that the powerful and the white have always been in the right since Robert’s appointment.
May 19th, 2009 at 3:27 pm
OK, Brad, name one case where you think “proper justice” coincided with “favoring the powerful.” The powerful, by definition, generally don’t need the courts to achieve the outcomes they want.
May 19th, 2009 at 3:32 pm
Roberts sided with the individual in the case for the right to bear arms case vs. Washinton D.C.
That’s the first thing I thought of, too. I don’t understand how Toobin can spin that as “siding with the state.”
You know, Roberts could be a doctrinaire right-winger, and wrong on the merits of these cases, and still not be an “intellectual mediocrity.” Obviously he was much more qualified than Harriet Myers, even if both of them might have reached the same result in a given case.
May 19th, 2009 at 3:34 pm
Oh yeah, well what about Harriet Miers? How soon you forget about the most qualified and brightest person ever nominated to the Supreme Court, Matthew. As far as I’m concerned Miers is and was topnotch.
May 19th, 2009 at 3:39 pm
I don’t understand how Toobin can spin that as “siding with the state.”
In that case, he sided with the constitution, which Toobin sometimes sees as “the state” and a hurdle to get the kind of law Toobin thinks is appropriate.
May 19th, 2009 at 3:48 pm
I would point out that the fact that Roberts is alleged to be a partisan judge does not imply that he is “an intellectual mediocrity who owed his advancement to a certain generic white male handsomeness and his role as a loyal foot soldier in a powerful political movement.”
May 19th, 2009 at 3:51 pm
Actually that was one where Roberts sided with the corporate defendant (gun industry) against the folks elected by the people of Washington DC. So that fits in with Toobin’s pattern of backing corporate interests very well.
The gun debate is one where the corporate interests are highly visible and very active. Claiming that anytime gun restrictions are loosened is a win for the “individual” is pretty damn myopic and discounts the large corporate lobby that funds the NRA.
May 19th, 2009 at 3:59 pm
Actually that was one where Roberts sided with the corporate defendant (gun industry) against the folks elected by the people of Washington DC.
Right… you know that case was D.C. vs. Heller, right? Heller being an individual? It wasn’t D.C. vs. Smith and Wesson.
Corporations don’t have a thing to do with this. D.C. was the powerful and Heller was the powerless in that case. Toobin said that “in every major decision” Roberts has sided with “the state over the condemned,” and no, Heller wasn’t on death row, so I guess Toobin is still technically right. But he’s obviously being misleading, unless he somehow doesn’t consider Heller to be a “major case.”
I think this shows that not everything can be reduced to a left-right, powerful-vs-powerless dynamic. Sometimes the right-wingers are on the side of the powerless. Look at Kelo, the eminent domain case. Of course, just because a conservative is on the side of the powerless doesn’t make him correct on the merits of the law. It doesn’t make a liberal automatically correct to be on the side of the powerless, either. As much as Matthew wants politics and law to be the same thing, they’re not.
May 19th, 2009 at 4:06 pm
The real issue is the charade that the justices go through when they are confirmed and promise to treat each case on its merits and according to the (absolutely clear) intent of the constitution.
The Dems let this fiction slide by for every justice confirmed during a GOP administration. In fact the conservatives twisted the theme around 180 degrees and called anyone who wasn’t a conservative ideologue an “activist” judge.
There have been studies which show that one can predict with a high degree of accuracy exactly how a justice will vote by correlating it with some well-known markers. In other words, every judge is ideologically biased.
So, let’s stop playing games and let’s see Obama nominate someone and say “I’m choosing X because their viewpoint is underrepresented on the court and since we live in a multi-faceted society, this sector needs to be included.” At least it would be honest.
No one has talked about it, but we have five Catholics on the court and there is a good chance that a Hispanic would be a Catholic as well. This is really both unprecedented and dangerous. I’m not worried about the Pope making policy, I’m concerned about the limited range of viewpoints that this produces. Even liberal Catholics still have much of their ethical thinking shaped by their upbringing. This is much too narrow in a world where Muslims and non-believers are both playing a bigger role in domestic and international policy.
Personally I think Obama should appoint only women until the balance is at least four female justices. They are the majority of the population, after all.
May 19th, 2009 at 4:08 pm
Heller is a good example. Another is WRTL–the FEC was acting as prosecutor in that case. Maybe Toobin thinks these cases aren’t important. Or maybe he’s just a fool.
May 19th, 2009 at 4:13 pm
To suggest that Heller was strictly an individual and that “Corporations don’t have a thing to do with this” is to ignore the entire history of Heller v. DC. The right wing had been shopping for an “individual” for a long time. This is no different than what happened with Rosa Parks. The myth may be that she was simply tired, but the truth is that a search for someone above reproach was made so that her cause would benefit.
Same with Heller. He wasn’t “just some guy,” he was backed by the power of the right wing – up to and including the sitting Vice President. Indeed, far from being an example of choosing for the individual over the state, it was a choice of the massive gun industry over the individuals of DC.
May 19th, 2009 at 4:19 pm
The overriding Republican priority for the Supreme Court is to limit the usefulness of the legal system as a tool for people who don’t have money to take it away from people who do. (The latter clause being of course the core definition of “Republican.”)
The decisions that really count are the ones like Ledbetter and the Exxon Valdez punitive damages case. All the abortion/gun stuff is window dressing.
May 19th, 2009 at 4:20 pm
Indeed, far from being an example of choosing for the individual over the state, it was a choice of the massive gun industry over the individuals of DC.
OK, if you’re going to play it that way and argue that Heller was the more powerful party, then I’m sure a right-winger can come up with justifications for why corporate defendants aren’t really more powerful than individual plaintiffs, and why a Guantanamo detainee isn’t “the powerless” either. If the ACLU sides with the detainee, that’s a big organization with a lot of money, is the detainee now a powerful interest?
Also, see how you said “individuals of D.C.”? That’s not the same thing as an individual, singular. If there’s a federal law against flag burning that goes before the court, and they overturn it, you might as well say they’re siding against “the individuals of the United States,” since flagburning laws are popular with most people.
May 19th, 2009 at 4:33 pm
too many steves, you seem to have missed the fact that Heller was recruited:
Heller:
There was nothing “individual” about the plaintiff. This isn’t a partisan reading of the facts, this is merely an honest rendering – supported by the very powerful people who brought this case. The people of DC made a choice, the gun industry and a host of right-wing regulars decided to use their power to overturn that choice. Roberts chose the powerful people behind Heller over the people of DC (does that phrasing make you happier?)
May 19th, 2009 at 4:34 pm
I’m intrigued by this Heller v. DC thread. To defend Toobin, the issue is not that Heller was not an individual suing the government (or whether the role of the gun industry in the gun lobby changes how we look at this situation), the issue is that Heller was not the defendant of a prosecution or condemned by the state. He certainly was not an individual plaintiff against a corporate defendant or the legislative branch of the government. He was a plaintiff suing the government which, the Court has said, denied him his right to arm bears.
May 19th, 2009 at 4:34 pm
Givn the subject matter of the post, Matt should have mentioned that one prominent “liberal” voice raised in support of Roberts’ confirmation was that of Jeffery (Sotomayor is a dumb bully, or so say my anonymous friends who I assure you have no axe to grind) Rosen.
May 19th, 2009 at 4:39 pm
Kelo, by the way, amuses me because most of its detractors never seem to notice the irony that it was exactly the kind of abuse they see in Kelo that made their favorite President (Bush, of course, until they realized he was going to go down in history as a monster) a multimillionaire.
May 19th, 2009 at 4:41 pm
The attacks on Toobin here are extraordinarily disingenuous. Toobin said Roberts always sided with “the state over the condemned.” Heller and Wisconsin Right to Life weren’t condemned; Heller sued to have a law overturned rather than being arrested under the law. Similarly WRTL sued before the FEC had taken any action against them. Thus they were not “condemned.”
So far (as of comment 24) it doesn’t seem that anyone has shown that what Toobin actually said was wrong in any way. And it’s striking that these cases (and Parents Involved) absolutely are cases in which Roberts has served the interests, and reflected the values, of the contemporary Republican party.
May 19th, 2009 at 4:42 pm
Ah, Panicker beat me to my main point while I was typing.
May 19th, 2009 at 4:45 pm
No Moral Panicker, Heller was not merely a plaintiff. To call him such is to ignore the very fact of his recruitment. It is to create a fantasy scenario and ignore the very real context of the suit. It was no “one man against the government” as you would have it. It was “one man, sought out by powerful forces, backed by every right-wing power up to and including the sitting Vice President against the city of Washington D.C”
May 19th, 2009 at 4:47 pm
Hello Not As Stupid as Will Allen,
I do not think it is right to say that the artifice of Heller’s predicament makes him any less of an individual plaintiff. He was an individual whose alleged (and now rightly or wrongly established) right to own a gun was frustrated by the DC government. The gun industry is interested because the a well-regulated militia being necessary for the protection(?) of a free state, the right of the people to bear arms means more money for them, but the specific right they were alleging was one for individuals.
How much authenticity is necessary to establish your version of individuality? (This is not me being unpleasant. This is just me inviting people to think.) Is your main objection that he was recruited? Rosa Parks was recruited, but for whom then was her campaign a victory? Is it then the fact of the profit-seeking motives involved in the institutions who recruited Heller? (Also, I am being a troll. I understand you are probably not saying Heller was not actually a legal individual as opposed to saying that it doesn’t make sense to think of his case as a success for “the individual” over “the state or corporation.”)
I’m not very good at blog comments, and I often muddle up because of divided attention, but there it is.
May 19th, 2009 at 4:57 pm
Toobin is too generous. There’s no theory at work here. Roberts is nakedly partisan. Whatever Rush wants is what Roberts does.
It’s the anti-Iran: the (basically) all-powerful court bowing to the will of political leaders.
May 19th, 2009 at 5:05 pm
Kelo, by the way, amuses me because most of its detractors never seem to notice the irony that it was exactly the kind of abuse they see in Kelo that made their favorite President (Bush, of course, until they realized he was going to go down in history as a monster) a multimillionaire.
When did I ever say anything that would make you think George W. Bush is my favorite president?
I’m more of a Warren Harding man myself. Bush would have to rank somewhere in the 30s in my book. Definitely the worst we’ve had since Nixon, and right there with Wilson, Hoover and Nixon as the worst since WWI.
May 19th, 2009 at 5:08 pm
#32: whether Heller should be seen as an individual or corporate interest is not the point. Toobin’s point, which the Heller case demonstrates as clearly as any, is that Roberts “has served the interests, and reflected the values, of the contemporary Republican Party.”
May 19th, 2009 at 5:11 pm
Moral Panicker, the question I believe we are debating is that of Roberts choosing the powerful over the individual (and, not having any history with you, I’m not trying to be deliberately unpleasant to you).
To that question I brought up Rosa Parks as an example of someone who was also being used by people larger than herself (though a member of the NAACP). But at stake was no powerful corporate lobby. Only the right of an individual to be treated equally under the law.
Contrast that with those lined up to provide Heller with a million dollars worth of lawyering.
And, let’s be honest, few “individuals” have the wherewithal to make it to the USSC. Almost all of the cases are backed by powerful interests. In the case of Heller, those were overhwelming and had long been trying to overturn 200+ years of Constitutional law. Heller’s recruitment to the cause seems to me to very much mark him as a tool of the right wing rather than a seriously injured party.
May 19th, 2009 at 5:23 pm
In response to #5 and #11: Matt’s (Yggy’s?) point about intellectual mediocrity and generic handsomeness is a clear reference to the Sotomayor-bashing that he’s posted about previously, not an argument in and of itself that Roberts is intellectually mediocre or…good-looking.
The point being, nobody brings up the term “Affirmative Action” when a white guy is nominated for the court, even though he benefits as much as anyone from sex and race-based favoritism, not to mention electoral politics.
The irony of this situation is amplified by the response in #5 and #11. Because those same points you make in defense of Roberts are points that could be made in defense of Sotomayor. Whether Roberts is, indeed, smart, or well-qualified, or able is beside the point here. It is that he is just accepted as such just by virtue of being what he is whereas Sotomayor is held to a different standard just by virtue of being who she is.
May 19th, 2009 at 5:57 pm
I think it is extremely dangerous to discount Roberts’s intelligence and strategic abilities.
I dunno. Anyone who thinks equality and affirmative action can be dealt with in such a facile way to simply say, as Roberts did, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” doesn’t get very high marks for intelligence from me.
May 19th, 2009 at 6:24 pm
too many steves, that was a broad comment, not directed at you. To be honest, I’m not a fan of eminent domain and never have been. Especially for the purpose of commercial interests. But it isn’t a cut and dried case.
May 19th, 2009 at 10:21 pm
Instead, we were treated to gushing coos over Roberts’ brilliance and moderation for which there was never any evidence.
Evidence for his moderation, no. But no evidence for his brilliance? How about winning about 40 cases before the Supreme Court? He was probably one of the dozen or so greatest appellate advocates in the history of the nation.
May 19th, 2009 at 10:33 pm
“Because I think it is extremely dangerous to discount Roberts’s intelligence and strategic abilities. On the other hand, I remain convinced that over time Roberts may prove more flexible than, say, Alito, particularly if he would otherwise find himself stuck in a minority.”
Shorter DTM: I got nothing, but I have to counterintuitively support the moderately conservative position on every issue, so here you go.
“But no evidence for his brilliance? How about winning about 40 cases before the Supreme Court? He was probably one of the dozen or so greatest appellate advocates in the history of the nation.”
Shorter Asher: the coach for the Harlem Globetrotters was the greatest profsessional basketball coach in history. Whoever he was.
May 19th, 2009 at 10:56 pm
Shorter Asher: the coach for the Harlem Globetrotters was the greatest profsessional basketball coach in history. Whoever he was.
That would require either that (a) arguing before the Supreme Court is analogous to the minor league in which the Globetrotters played (actually, they didn’t really play in a league, they just played stooge teams), and that the really hard appellate work is done elsewhere, or (b) that arguing before the Supreme Court is hard stuff, but Roberts had the unique fortune of facing really, really bad opposition. Neither of which are the case.
May 20th, 2009 at 4:46 am
Are you kidding? Roberts is a right wing hack arguing before a court that has long been trending towards right-wing hacks. Hell, the trend was so strong that he became Chief Justice.
Suddenly the Globetrotters analogy seems pretty apt. Everyone knows the game is rigged, but in all the fun, no one cares that the refs are in on it too.
May 20th, 2009 at 10:51 am
Nobody wrote any prominent articles slamming him as an intellectual mediocrity who owed his advancement to a certain generic white male handsomeness and his role as a loyal foot soldier in a powerful political movement
A few people mentioned this, but I don’t think anyone believes, either pre-confirmation or post-confirmation, that John Roberts is an “intellectual mediocrity.” Everyone knew that he was a brilliant lawyer.
My own suspicion is that people tend to conflate progressive views with intelligence. I suspect that many people thought that someone so intelligent could not be such an extreme judicial conservative. They were wrong. MY, you are doing the same thing even now. You assume that because his judicial views have been so conservative that he’s an “intellectual mediocrity.” Nothing could be further from the truth. John Roberts is the most dangerous conservative there is; he’s smart, affable, and has incredible legal talents.
President Obama should pick someone who can write equally clear and legally precise opinions when nominating a SCOTUS justice.
May 20th, 2009 at 1:11 pm
The people who were snowed by John Roberts during his confirmation process are most likely the same people who were snowed by G.W. Bush when he claimed to be a centrist. Anyone with a working brain should not have been duped.
May 20th, 2009 at 2:01 pm
The intelligence requried to be a good lawyer and the intelligence required to be an “intellectual” are not always the same. A small minority, like John Marshall or William Brennan, had both. Justice Douglas wasn’t that great a “lawyer,” and his reasoning was too remote from the relvant materials, same with Justice Scalia, but both are pretty solid philosophers.
When Robers “favors reflects a view that the Court should almost always defer to the existing power relationships in society” and “reflects the current values of the Republican party,” he’s not engaged in a deeply intellectual project but a political one. To that extent, he’s a brilliant technician; but he’s hardly a deep thinker and is not at all self-reflective. His rhetoric in the Seattle segregation case about the way to stop discrimination by race is to stop discriminating by race is the sort of thoughtless, simplistic, Bill O’Reilly talk that you’d expect from someone who, as Toobin implicitly suggests and Yglesias explicitly affirms, has benefitted immensely from right-wing white boy 1908s affirmative action.
May 21st, 2009 at 2:40 am
Roberts says that judges make sure that everyone plays by the rules. Is that what happened when the court selected Bush to be president without the constitutional authority to do so. How about following the rules of vote counting? So let’s see, court picks Bush, Bush picks court. That’s democracy? Does any thinking person believe that Roberts and Alito were chosen for any other reason than carrying out the agenda of the powers that be. They are front men there for the sole purpose of keeping justice out of the hands of we the people. Roberts is right about his role being critical because if the criminal manner of the Bush administrations rise to power were to ever be uncovered and somehow rise above the corrupted justice department the most despotic injustice in the history of democracy can be swept under the rug by the intellectual giants that sit on the supreme court. Wake up!