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May. 19 2009 - 6:12 am | 6 views | 2 recommendations | 3 comments

Kind Justice

President George W. Bush announces from the Ov...

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The public was first introduced to John Roberts in 2005, when he was nominated by George W. Bush to be Chief Justice. I remember well the scramble by journalists to dig up everything and anything on Roberts — interviews with neighbors, former classmates, pictures from various points in his life. But all the articles at the time made Roberts seem to be the straightest of arrows — and his confirmation hearing where he cajoled with the Judiciary Committee and charmed Senators, made him seem harmless, nay likable, despite his apparent conservative bent.

I was among those who underestimated Roberts. In reading about him at the time, I couldn’t help but like the man, his down-to-earth humor and his quick wit. In the years since however, Roberts has proven to be a terribly dangerous long term threat to civil rights and more activist than his speech to the Senate on judges as umpires would have predicted. (“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.”)

This is the subject of The New Yorker’s Jeffrey Toobin’s article on Roberts, perfectly titled, “No More Mr. Nice Guy.” “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant,” writes Toobin. “[T]he state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”

Roberts’s conservative leanings are far stronger than many could have predicted at the time of his appointment — though the signs were there, and not all were as easily swayed by the low-key demeanor of Roberts as I was. Obama, for instance, in his time as Senator, voted against Roberts’s appointment. That vote can now be seen as setting the stage for the next eight years of battle between the executive branch and the courts. That tug of war has already started, with Obama immediately creating the Lily Ledbetter Fair Pay Act, which the Roberts court had failed to uphold just two years before when it came before the justices as Ledbetter v. Goodyear.

Perhaps most interesting, however, will be how the first black president interacts with a Chief Justice who seems to think racism no longer exists. In deciding a case on whether to force integration of schools, Roberts memorably wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The line wowed Justice Stevens who wrote a dissent calling Roberts’s words as similar to  “Anatole France’s observation” that the “majestic equality” of the law forbade “rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread,” Toobin writes.

The incident highlights not only the political split between the court, but the difference in age, between the very old (four justices over 70) and the fairly young– with the most dangerous of conservative judges falling in the more youthful bracket. Toobin’s article is a must-read to grasp the future battles within the Court and between the Court and the federal government for the next decade.


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    They way you described things is pretty much how they went. Nobody could find a reason to keep him off the bench.

    The only thing that alarmed me was his age. Bush picked someone so young because he was sure of Roberts. That should have alarmed Democrats during the confirmation process more than anything. Bush wanted Roberts to be on that court for a long time. He would not have picked someone that was risky as Chief Justice.

    I was shocked how smoothly his confirmation went and he has shown no indication of moving toward the center.

    Obama’s pick isn’t going to change the make-up of the court other than perhaps adding another woman. I hope it is Secretary of State Hillary Clinton. That’s the reason I wanted her in his cabinet. If they could work together there, maybe he would give her the first opening on the court. She may not appear to be the best pick to some, but I trust her with the lifetime tenure aspect of being on the court. Her life has been all about Public Service and I can’t think of many things she has done that I have disagreed with in all these years.


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    I was concerned about Roberts from the beginning; but he has proven to be much more to the right than even I had expected. Here in Kentucky we’re having to deal with the changes in how trying to make the schools diverse they can no longer use race as a basis. They are now using income, I believe; but once that gets back to the Supremes, I wonder how it will go.

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    Kate, perhaps you can help me out: do you know Sonia Sotomayor’s opinion of the Kelo decision? John Robert’s opinion?
    The Kelo decision is the archetype of government siding with big business to the detriment of what Dan Rather used to call work-a-day Americans.

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    About Me

    While working at Talking Points Memo Muckraker during the 2008 Election, I covered the Justice Department politicization, voting rights law and the insanity of Alaska politics. I loved the beat which was somewhere between the wonky side of politics and the law. The realization was enough to send me off to law school in D.C. -- which seems to be a perfect combination of both.

    Though I've covered everything from birth control to blenders in my few years in journalism, this blog will be a compilation of stories related to the Supreme Court, federal courts, and the law generally. With an occasional story about Sarah Palin or Ted Stevens thrown in for good measure.

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    Contributor Since: March 2009