Note: this article was originally published in VALLEY LAWYER
Judges are by their nature vexatious. Proof of this was readily apparent at a recent Republican debate wherein several candidates expressed their disapproval of the current Chief Justice of the United States Supreme Court, John G. Roberts – a justice nominated by a president and confirmed unanimously by Senators from their own party.[i]
But where this attribute is seen as a detriment in a litigant, for the robed figure on the bench, it can often be a quality. The worry, the distress, the vexation judges engender is often the by-product of their humanity, their intellectual evolution and, perhaps more succinctly, their pragmatic unpredictability. Therefore, if you accept the Justice Douglas’s premise that lawyers search “for moorings where clients can be safely anchored,” then the evolving judge may be, to paraphrase President Truman, no longer a lawyer’s friend. [ii], [iii]
It has been said that a judge comes to the bench reborn. Yet, from birth we try to cabin the newborn by trying to affix upon them a static and defining judicial philosophy. Nowhere is this phenomenon more visible than in the parlor game known as the Senate Confirmation Hearing.[iv] The rules of the game are relatively straightforward. Prospective justices are forbidden, pursuant to Judicial Ethics Canon 3-A(6) from publicly commenting on issues that may come before them in the future. Knowing this, the members of the Senate Judiciary Committee then provide lengthy commentaries on what they think makes a good candidate and summon their remembered legal skills to try to get the nominee to reveal how he or she would decide a future question. The justices repeatedly and tactfully decline the invitation. Ultimately, a vote is held with the participants generally unaffected by the debate.
Roberts, at his hearing dutifully avoided the questions but did share that he saw the role of a judge as analogous to that of an umpire at a baseball game.[v] His point was, because no one ever watches a game to see the umpire, that judges should act with a certain degree of humility. Much like Justice Robert H. Jackson, Roberts sees the role of the judicial branch as one of an intermediary between the branches that are (to extend the analogy) the players: the Executive and the Legislature.
Roberts was also no doubt aware that, as Chief Justice, he would be playing umpire to an additional team: the associate justices of the Supreme Court. Once described by a clerk for Justice Frankfurter as similar to “scorpions in a bottle,” Roberts saw success in his role as contingent upon being able to collegially tame the justices into avoiding academic, agenda-driven arguments and speaking with one voice as often as possible. [vi], [vii]
The most notorious set of “scorpions” were described in a 2010 book (of the same name) by Harvard Law Professor, Noah Feldman.[viii] Dismissed by some academics as hagiography, the book’s value lies in its juxtaposition of several foundational judicial philosophies, personified by four justices appointed by Roosevelt to reverse the excesses of the Lochner era court.[ix]
Felix Frankfurter, for example, saw judicial restraint as the best weapon for furthering liberal causes in an age when the judicially created fundamental “right to contract” was seen as an impediment to the New Deal agenda. Hugo Black asserted that the key to preventing conservative judicial overreach was strict adherence to the text of the constitution. William O. Douglas’ eschewed Black’s formalism and embraced legal realism’s emphasis on social interests and policy as the more meaningful decisional framework. (This view would be expanded by contemporaries like Earl Warren and Thurgood Marshal to create the concept of a “living constitution” which sees the Court has having an “additional role as the expounder of basic national ideals of individual liberty, even when the content of these ideas is not expressed as a matter of positive law in the written Constitution”).[x] Last, Robert H. Jackson’s reluctance to lay out a strict philosophy still betrays a Roberts-like pragmatism in his approach to the Court’s role as a tool for balancing the competing forces of the Legislature and Executive.
Perhaps it is in cognizance of conservative vilification of the liberal excesses of the 1960’s and 70’s that Roberts emphasized his “view that a certain humility should characterize the judicial role” in his hearings before the Senate Judiciary Committee. [xi] Roberts claimed that he came to the bench with no agenda.[xii] Agendas, Roberts asserted in a 2007 interview, hinder unanimity, ultimately eroding the Supreme Court’s credibility and legitimacy.[xiii] To this end, Roberts advised his colleagues on the bench that they should consider “the effect on the Court as an institution” when they write separately to dissent or concur.[xiv] This aversion to discord may be attributable to his experience in the D.C. Circuit, where “it is firmly embedded” that they should “function as a [unified] court.”[xv]
On the surface, it appears that Roberts’ notion of humility mirrors Justice Felix Frankfurter’s emphasis on “judicial restraint.” Frankfurter, an acolyte of Holmes and Brandeis, saw in the idea that “judges should not turn political beliefs into legal doctrine” a philosophical justification for undoing earlier court decisions which had found worker protection laws violative of “[t]he general right to make a contract …[,] part of the liberty of the individual protected by the Fourteenth Amendment….”[xvi], [xvii] Similarly, six decades later, the nominee Roberts found himself riding a backlash against “judicial activism” and, like Frankfurter, emphasized that “courts are passive institutions…. [without] the constitutional authority to execute …[or] make the law.”[xviii]
Perhaps unsurprisingly, applying this position has made Roberts the subject of criticism from both sides of the aisle. To the chagrin of conservatives, Roberts upheld the Affordable Care Act against an attack grounded in statutory construction, finding that in spite of the law’s “inartful drafting, … in every case we must respect the role of the Legislature, and take care not to undo what it has done.”[xix] And while Roberts believes that, in order to protect the Legislature’s role as voice of the people, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,”[xx] where the legislature has not acted, he believes the Court should refrain from acting in its place. To the disappointment of liberals looking for a new ally, he expressed this point strongly – invoking the ghosts of Lochner and Dred Scott – while dissenting in the case striking down gay marriage bans. There, he accused the majority in Obergefell of succumbing to the temptation of “confus[ing its] own preferences with the requirements of the law.”[xxi] The admonition is compelling when framed as the answer to the question of “whether, in our democratic republic, [a] decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes….”[xxii]
Frankfurter, in his day, was also confronted with a question of unequal treatment. When faced with the question of segregation on the basis of race, he wrote to a colleague that the “[l]aw must respond to transformation of views as well as to that of outward circumstances. The effect of changes in men’s feelings for what is right and just is equally relevant in determining whether differentiation of treatment by law is a denial of the equal protection of the laws.”[xxiii] While the speed with which legislatures are prepared to act is possibly a factor in both men’s reasoning, Roberts seems inclined to be exceedingly patient for Congress to voice the population’s feelings for what is right or just.
Arguably, none of the Scorpions’ philosophies have been so co-opted by conservatives as Hugo Black’s originalism: the view that “language and history … are the crucial factors” for constitutional interpretation, rather than “reasonableness or desirability as determined by justices of the Supreme Court.”[xxiv] Therefore it is perhaps unsurprising that Roberts’ feels compelled in Obergerfell to mention that “[t]he Constitution itself says nothing about marriage,” inferring from this absence that “the Framers thereby entrusted the States with the whole subject of the domestic relations of husband and wife.”[xxv] Roberts has stated in the past that he has a preference for precedent over original intent.[xxvi] Still he has, from his very first dissent on the Court, regularly invoked originalism.[xxvii] And in this most recent session, he expressly chided a majority opinion that began, in his view, with policy rather than the Constitution.[xxviii]
In fact, a brief survey of his decisions reveals a more originalist bent than Roberts has openly acknowledged. In one notable case, Roberts found granting Congress the power to compel commerce (i.e. the purchase of health insurance) inappropriate in “the country the Framers of our Constitution envisioned.”[xxix] In another, the intention of the Framers is similarly invoked by the Chief Justice to give context to the applicability of international treaties in domestic law.[xxx] And at the end of a long and complicated affair that had devolved to a question on expert witness fees, Roberts included a three paragraph concurrence, asserting that Art. III § 2 makes it clear that the Supreme Court’s appellate jurisdiction is subject to Congressional control but its original jurisdiction is not – adding, that“[t]he Framers presumably act[ed] intentionally and purposely” in making the distinction.[xxxi]
These allusions to originalism may also be perceived as warnings that, while Roberts may not share Scalia’s affinity for a “dead Constitution,” his reasoning will not be comparable to that of Earl Warren, Warren Burger or, most notoriously, “Wild Bill” Douglas.[xxxii] For more than two decades, the Court adopted the Holmesian idea that constitutional questions “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”[xxxiii] From that proposition, they divined expansive and unwritten fundamental rights with respect to privacy (including decriminalizing abortions and freedom from anti-homosexual legislation) and forged new due process rights (including the right to be informed of one’s rights when taken into custody and requiring the state provide an attorney to indigent criminal defendants).[xxxiv]
Roberts, on the other hand, sees fundamental right claims as falling “into the most sensitive category of constitutional adjudication” and accordingly insists “that judges exercise the utmost care in identifying implied fundamental rights, lest [they] … be subtly transformed into the policy preferences of the Members (sic) of this Court.” [xxxv] Looking again to Roberts’s record, this exercise of care with respect to “creating” fundamental rights includes seeing the question of whether enemy detainees are entitled to habeas review as “an entirely speculative one” – at least until all of a detainee’s Congressionally created remedies have been exhausted.[xxxvi] Oddly, this same caution also apparently includes striking down portions of the Voting Rights Act – a legislatively imposed solution created to protect fundamental rights – because Roberts deems the law to be in contravention of another fundamental constitutional principle: “equal sovereignty among the States.”[xxxvii]
While it is unlikely that the liberal Justice Douglas would have reached the same result in Shelby, Roberts uses some very Douglas-like reasoning to reach his conclusions. For instance, Douglas has most often been identified with the philosophy of “legal realism,” which is said to be premised on the “divorce of the ‘is and the ought,’ i.e. of facts and values[.]”[xxxviii] Taking Roberts at his word, the fact that the VRA was duly deliberated and passed by Congress should be sufficient to invoke the duty to respect the Legislature’s role as voice of the people and require that “every reasonable construction … be resorted to, in order to save [the] statute from unconstitutionality.”[xxxix] Instead, Roberts clearly states that Congress ought to have used contemporary data that reflected contemporary conditions before reauthorizing the law.[xl] Summoning Holmes, he reminds us that “[s]triking down an Act of Congress is the gravest and most delicate duty that this Court is called on to perform.”[xli] But then he does exactly that. Regardless of whether this was “an exercise of pure will, fueled by a desire to change settled law”[xlii] or a reasoned expression of the belief that all states should be treated equally, the fact remains that Roberts is willing to show less judicial humility when he believes legislation to be based on a flawed premise.
This modified humility may also betray a link between his thinking and that of Robert H. Jackson. Jackson often emphasized that the Court could not rely on formalism if its rulings were to have real world legitimacy. As an example, where Jackson saw an alien held on Ellis Island whom the government argued was free to “leave in any direction but West,” he noted that “[i]t overworks legal fiction to say that one is free in law when by the commonest of common sense he is bound.”[xliii] To be sure, Jackson was no fan of following “impeccable legal logic … to … artificial and unreal conclusion[s].”[xliv] To compare, Roberts has often espoused the legal logic of judicial respect for the legislature. But where the legislature uses “40 year old data” to treat states unequally, upholding such a law would be, for Roberts, an artificial result. Therefore, he rejects it.
That Roberts finds himself at least occasionally intellectually aligned with Jackson should surprise no one. Roberts once clerked for William Rehnquist, who in turn clerked for Jackson. As a nominee for the D.C. Circuit Court of Appeals, Roberts wrote of his admiration for Jackson’s “common sense and pragmatism.”[xlv] It may also be of note that both men were brought to the Court at a time where there was a sentiment that the decisions of the previous decades were overly reflective of the personal views of the Justices. Jackson was, of course, brought on by Roosevelt to protect New Deal legislation from defeat at the hands of activists. Roberts was, arguably, in part nominated because his conservative bona fides were sufficient to ensure that he would not be a disappointment to those who saw activist judges as a form of liberal super-legislature.
Ultimately, their greatest similarity may be their de-emphasis on the importance of ideological labels or dogma. As one biographer noted, “[t]hings made sense to Jackson when they worked, when they did the job at hand, and ideas made least sense to him when they proved useless….”[xlvi] Roberts approach may be similar. When judicial humility would lead to an artificial result, it is abandoned. When originalism can serve the dual purpose of creating greater unanimity on the Court and expressing a just result, it is embraced. Where strict statutory construction would lead to undoing Congressional intent, a broader reading is called for. For the lawyer seeking a rigid approach upon which he can rely, this kind of pragmatism can prove problematic.
It is perhaps anecdotally interesting that former Supreme Court law clerk and current presidential candidate Ted Cruz has released a remake of Ronald Reagan’s “Bear in the Woods” campaign ad.[xlvii] In the modern version, a scorpion is substituted for the bear. The ad was widely criticized for never stating clearly what the scorpion is supposed to represent (Islamic terrorism, an influx of illegal aliens?).[xlviii] Still, one wonders if Cruz did not appreciate the irony of using Alexander Bickel’s anthropomorphic image of a Supreme Court Justice when asking “shouldn’t we recognize the scorpion for what it is…?”[xlix] Perhaps the answer is: vexatious.
[i] See David G. Savage, Chief Justice Roberts’ record isn’t conservative enough for some justices, Los Angeles Times, September 25, 2015 (available at: http://www.latimes.com/nation/la-na-roberts-conservative-backlash-20150924-story.html); Charles Babington, Roberts Confirmed as 17th Chief Justice, The Washington Post, September 30, 2005 (available at: http://www.washingtonpost.com/wp-dyn/content/article/2005/09/29/AR2005092900859.html )(“The Senate voted 78 to 22 to confirm Roberts. All 55 Republicans, half the 44 Democrats and independent Sen. James M. Jeffords (Vt.) voted yes.”;
[ii] William O. Douglas, “Stare decisis,” Speech delivered at the eighth annual Benjamin Cardozo Lecture at the New York City Bar on April 12th, 1949, reprinted in the Columbia Law Review, 49 Colum. L. Rev. 735.
[iii] David E. Rosenbaum, THE SUPREME COURT: News Analysis; Presidents May Disagree, but Justices Are Generally Loyal to Them, N.Y. Times, April 7, 1994 (available at:http://www.nytimes.com/1994/04/07/us/supreme-court-analysis-presidents-may-disagree-but-justices-are-generally-loyal.html ).
[iv] In all fairness, the “game” took a far more serious turn during the hearings held for Clarence Thomas and Douglas Ginsburg where substantive issues were addressed.
[v] Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. at 55 (2005)(hereafter “Hearings”).
[vi] Yale Law Professor, Alexander Bickel.
[vii] Jeffrey Rosen, Roberts’s Rules, The Atlantic, January / February 2007.
[viii] Noah Feldman, Scorpions: the battles and triumphs of FDR’s great Supreme Court justices, (1st ed. 2010).
[ix] Eric A. Posner, The Four Tops, The New Republic, October 14, 2010 (available at: http://www.newrepublic.com/book/review/the-four-tops-roosvelt-supreme-court ).
[x] Thomas C. Grey, DO WE HAVE AN UNWRITTEN CONSTITUTION?, 27 Stan. L. Rev. 703,706.
[xi] Hearings at 55.
[xii] Id at 56.
[xiii] Rosen, Roberts’s Rules, supra.
[xvi] Feldman, supra at 31.
[xvii] Lochner v. New York, 198 U.S. 45, 53 (1905).
[xviii] Hearings at 206.
[xix] King v. Burwell, 135 S. Ct. 2480, 2483 (“inartful drafting”), 2496 (respecting the role of the legislature).
[xx] Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,2594 (quoting Hooper v. California, 15 S. Ct. 207 (1895)).
[xxi] Obergefell v. Hodges, 135 S. Ct. 2584, 2612 (2015).
[xxiii] Christopher W. Schmidt, “Freedom Comes Only from the Law”: The Debate over Law’s Capacity and the Making of Brown v. Board of Education, 2008 Utah L. Rev. 1493, 1542 (2008)(citing Memorandum from Justice Felix Frankfurter 2 (Sept. 26, 1952), Earl Warren Papers, Container 571, Manuscripts Division, Library of Congress, Washington, D.C.)(internal quotations omitted).
[xxiv] HUGO L. BLACK, A Constitutional Faith, at 14 (1968), taken from Michael J. Gerhardt, A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia, 74 B.U. L. Rev. 25, 66 (1994).
[xxv] Obergefell, at 2613-14 (internal citations omitted).
[xxvi] Jeffrey Rosen, Originalism, Precedent, and Judicial Restraint, 34 Harv. J.L. & Pub. Pol’y 129, 130 (2011)(citing Hearings at 55-56, 550 (statement of John G. Roberts, Jr., Nominee, Chief Justice of the United States Supreme Court)).
[xxvii] Danforth v. Minnesota, 552 U.S. 264, 292 (2008)(Roberts, J., dissenting)(“[The majority’s] result is contrary to the Supremacy Clause and the Framers’ decision to vest in “one supreme Court” the responsibility and authority to ensure the uniformity of federal law. Because the Constitution requires us to be more jealous of that responsibility and authority, I respectfully dissent.”).
[xxviii] Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n., 135 S. Ct. 2652, 2678 (2015)( Roberts, J., dissenting).
[xxix] Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2589 (2012).
[xxx] Medellin v. Texas, 552 U.S. 491, 515 (2008)(“Our Framers … also recognized that treaties could create federal law, but again through the political branches, …. The dissent’s understanding of the treaty route, … cannot readily be ascribed to those same Framers.”).
[xxxi] Kansas v. Colorado, 556 U.S. 98, 110 (2009)(internal citations omitted).
[xxxii] Tasha Tsiaperas, Constitution a ‘dead, dead, dead” document, Scalia tells SMU audience, Dallas Morning News, January 28, 2015 (available at: http://www.dallasnews.com/news/community-news/park-cities/headlines/20130128-supreme-court-justice-scalia-offers-perspective-on-the-law-at-smu-lecture.ece ).
[xxxiii] Missouri v. Holland, 252 U.S. 416, 433 (1920).
[xxxiv] Roe v. Wade, 410 U.S. 113, 164 (1973) holding modified by Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992)(abortions); Lawrence v. Texas, 539 U.S. 558, 578 (2003)(sodomy); Miranda v. Arizona, 384 U.S. 436, 444 (1966)(advisement of rights);Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963)(right to counsel).
[xxxv] Obergefell, at 2616 (2015)(internal citations omitted).
[xxxvi] Boumediene v. Bush, 553 U.S. 723, 805 (2008).
[xxxvii] Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612, 2616 (2013)(internal citations omitted).
[xxxviii] See e.g., Legal Realism, N.J. Law., OCTOBER 2000, at 30, 3.
[xxxix] Nat’l Fed’n of Indep. Bus. at 2594.
[xl] Shelby Cnty., at 2627-31 (2013) (Roberts grounds his decision in the belief that legislative remedies must “speak to current conditions” rather than “decades-old data and eradicated practices.”).
[xli] Shelby Cnty., at 2631 (citing, Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J., concurring)(internal quotation marks omitted).
[xlii] Linda Greenhouse, The Real John Roberts Emerges, N.Y. Times, June 29, 2013, p. SR 1.
[xliii] Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 220 (1953).
[xlv] John Q. Barrett, John Roberts and Justice Jackson, The Jackson List.com, July 28, 2005 (available at: http://thejacksonlist.com/wp-content/uploads/2014/02/20050728-Jackson-List-John-Roberts.pdf )
[xlvi] John Q. Barrett, A Commander’s Power, A Civilian’s Reason: Justice Jackson’s Korematsu Dissent, Law & Contemp. Probs., Spring 2005, at 57, 70.
[xlvii] “Scorpions” Political advertisement created by Ted Cruz 2016 (available at: https://www.youtube.com/watch?t=26&v=f4K_uFZW9Jk).
[xlviii] See e.g., Stephen Stromberg, Ted Cruz’s dog-whistling ‘scorpion’ ad, Washington Post Op Ed., September 16, 2015 (available at: http://www.washingtonpost.com/blogs/post-partisan/wp/2015/09/16/ted-cruzs-dog-whistling-scorpion-ad/); Also, Cobert mocks Ted Cruz’s “Scorpion In The Desert” Ad:Is it Terroism, Iran, Mexicans? Real Clear Politics Video, RealClearPolitics.com, September 17, 2015 (available at: http://www.realclearpolitics.com/video/2015/09/17/colbert_mocks_ted_cruzs_scorpion_in_the_desert_ad_is_it_terrorism_iran_mexicans.html).
[xlix] “Scorpions” video, supra.