John Roberts: Boy In The Bubble

The chief justice has made a career of undoing progress on civil rights and ignoring the consequences.

John Roberts Jr. was only two and a half years into his tenure as chief justice when the Supreme Court heard oral arguments in Crawford v. Marion County Election Board. The case, argued in January 2008, involved a challenge to a strict Indiana voter ID law that Democrats argued could disenfranchise hundreds of thousands of mostly poor and minority voters. 

Martin Longman | Washington Monthly

The Chief: The Life and Turbulent Times of Chief Justice John Roberts
by Joan Biskupic
Basic Books, 377 pp.

Under the law, at the time the strictest in the nation, voters without ID could cast a provisional ballot on Election Day, but they would have to return to the county clerk’s office within ten days with proper ID to make the vote count. Paul Smith, the lawyer for the challengers, argued that lots of people in Indiana would have trouble just getting to the clerk’s office, much less getting an ID, in ten days. Roberts, a Hoosier himself, was skeptical. “County seats aren’t very far for people in Indiana,” he said. 

Smith responded that, in fact, for poor African Americans without a driver’s license, it could be truly challenging. “If you’re an indigent person, Your Honor, in Lake County, in Gary, Indiana, you’d have to take the bus seventeen miles down to Crown Point to vote every time you want to vote. . . . That’s a significant burden.” Roberts wasn’t convinced. The Court upheld the law, with Roberts in the majority. A few months later, untold numbers of Indiana voters were turned away at the polls because they didn’t have the right ID, including nearly a dozen octogenarian nuns whose polling station was in their own convent. The decision gave the green light for a rash of other Republican-controlled states to pass similar legislation.

I remember sitting in the courtroom during the oral arguments in Crawford, thinking that for someone so breathtakingly smart, the new chief justice seemed awfully blind to how things work in the real world. He had graduated Harvard College summa cum laude in three years before going on to finish top in his class at Harvard Law. He’d served as a deputy solicitor general, worked as a leading Supreme Court litigator in private practice, and spent a couple of years as a judge on the powerful DC Circuit Court of Appeals. Yet on that January day in 2008, he appeared utterly baffled by the notion that a seventeen-mile trip to the county clerk’s office could be a challenge for people without driver’s licenses.

I wondered: Was it willful ignorance? A desire to simply ignore the obvious racial implications of the case? Or was the chief justice of the United States really that clueless? In The Chief, CNN legal analyst Joan Biskupic doesn’t quite answer those questions, but her book makes painfully clear that the defining feature of Roberts’s legal career has been his relentless efforts to roll back any measures to combat racial inequality and to make life more difficult for minorities. 

When President George W. Bush nominated Roberts for a spot on the Supreme Court, Roberts was supposed to be the anti–Robert Bork. Rejected by the Senate in 1987 after being nominated by Ronald Reagan, Bork was rabidly conservative, so much so that the Senate feared he wouldn’t support basic civil rights laws. With his odd German philosopher beard and grumpy demeanor, he looked the part, too. By the time Roberts’s turn came around, conservatives had learned their lesson. As Kurt Andersen wrote in New York magazine, “Roberts’s appointment represents the next stage of politicization—of the nominee chosen like a golden boy by the party bosses, nice-looking and pleasant-seeming, a prospective justice who, positions aside, seems like a good guy.”

Witty, charming on the bench, and TV handsome, Roberts does indeed seem like a good guy, which is what makes him a fascinating, if frustrating, subject.

Witty, charming on the bench, and TV handsome, Roberts does indeed seem like a good guy, which is what makes him a fascinating, if frustrating, subject for a book. But Biskupic has carefully traced Roberts’s record on cases involving race from his days as a lawyer in the Reagan Justice Department through fourteen years on the Supreme Court. Biskupic is unfailingly evenhanded, but what she describes is a calculated, sustained assault on the nation’s civil rights laws by the most powerful judge in the country, one who stubbornly refuses to see the devastating impact of his decisions on the people most affected by them. 

Roberts’s life in a bubble of privilege began in Long Beach, Indiana, a wealthy white enclave that had been created with housing covenants barring blacks and other minorities from moving in. Biskupic notes that thanks to these covenants, along with lending and housing discrimination that kept African Americans stuck in places like Gary, Roberts grew up in one of the most segregated areas of the country at the time. His insular upbringing continued when he went to La Lumiere, an exclusive all-boys Catholic boarding school. From there, it was off to Harvard for college and law school. 

In 1980, Roberts clerked for Justice William Rehnquist. Rehnquist, who would be elevated to chief justice in 1986, was a conservative ideologue, a man who as a Supreme Court clerk in 1954 had written a memo arguing that Plessy v. Ferguson, the infamous “separate but equal” ruling, was “right and should be reaffirmed” in Brown v. Board of Education. Before joining the high court, Rehnquist had spent some of his time in private practice in Phoenix fighting school desegregation efforts. In the early 1960s, he also had been involved in GOP efforts to intimidate minority voters at the polls in Arizona. When he was nominated as chief justice, several people testified at his confirmation hearing that they had seen Rehnquist personally scuffle with a black voter at a polling station. 

Rehnquist was an important player in the then-budding conservative movement and helped launch Roberts into his first government job—special assistant to Attorney General William French Smith in the first year of the Reagan administration. In that position, Roberts was a key player in the administration’s aggressive efforts to roll back affirmative action and other civil rights protections. Biskupic writes that it was during these early Reagan years that Roberts “solidified his view that remedies tied to an individual’s race were as repellant as racial discrimination in the first instance.” 

To that end, Roberts helped the Reagan administration lift desegregation orders in public schools and target measures that would have diversified broadcast license ownership at the FCC. Most importantly, he fought Congress’s attempts to strengthen the Voting Rights Act, the landmark legislation passed in the wake of the bloody civil rights protests in Selma, Alabama, in 1965. In virtually identical arguments to what he would make thirty years later at the Supreme Court, Roberts wrote a chain of memos to Smith defending the administration’s opposition to strengthening the VRA. In one, he insisted that congressional efforts to beef up the act were misguided because “there is no evidence of voting abuses nationwide supporting the need for such change.” In 1981, that assertion was patently false, and Congress went on to reauthorize the VRA for another twenty-five years, with the added protections. 

Roberts tried to disown these memos during his 2005 confirmation hearing to the Supreme Court, arguing that he was merely a functionary working to advance the agenda of the administration, and that the memos didn’t reflect his personal views. But as Biskupic writes, “the ideas that Roberts espoused reappeared in his decisions after he became a justice. A straight line can be drawn from his positions on voting rights, affirmative action, religion, and abortion rights in the 1980s to his expressed views from the center chair at the Supreme Court.” 

This means that the chief justice has continued to attack civil rights laws and any legal measure that might have alleviated racial disparities and inequality. In a pair of 2007 cases involving school desegregation, he went so far as to reinterpret Brown v. Board of Education to use it as a cudgel against the very people it was supposed to benefit. Siding with a group of unhappy white parents, he suggested that the landmark opinion forbade school districts from considering race as a factor, even when they were doing so to desegregate schools. “The way to stop discrimination on the basis of race,” Roberts wrote in Parents Involved in Community Schools v. Seattle School District No. 1, “is to stop discriminating on the basis of race.”

By far Roberts’s most controversial opinion on civil rights came in 2013, in Shelby County v. Holder, in which Roberts, writing for a 5–4 majority, obliterated a major section of the Voting Rights Act, one that he’d been gunning for since his days in the Reagan administration. The decision invalidated a portion of the act that allowed the Justice Department to block changes to voting laws or redistricting plans in jurisdictions that had a history of suppressing minority voters. Roberts believed that, contrary to mountains of evidence assembled by Congress, the provision was no longer necessary because, well, the South had changed. 

The impact of the decision was immediate. Within twenty-four hours, Texas announced plans to implement a strict voter ID law, which had been blocked by the Justice Department since 2011 because of its discriminatory effect. North Carolina also moved swiftly to implement a host of laws to suppress minority voting, including cutting early voting hours and imposing strict ID requirements. A federal judge later blocked the law, saying North Carolina legislators had targeted African American voters with “almost surgical precision,” and that the law was clearly the product of “concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.”

The Chief makes clear that Roberts has been sheltered from the impact of his decisions for most of his life. That all changed when Justice Sonia Sotomayor joined the Supreme Court in 2009. According to Biskupic, the nation’s first Hispanic justice has directly challenged Roberts on race in ways no one else ever seems to. 

The buttoned-up chief refuses to acknowledge that his own white, privileged background might influence his thinking about the law. Sotomayor, meanwhile, once gave a speech suggesting that a “wise Latina” might reach a better conclusion in a case than a white man. She was a beneficiary of affirmative action at Princeton in the 1970s and then thrived there, living proof of the benefits of programs Roberts has spent his whole career trying to eliminate. She embraces her heritage as inseparable from her understanding of the law and has invoked her personal experience with discrimination in opinions. Sotomayor has burst Roberts’s protective bubble, and Biskupic suggests that it drives him nuts. 

In a dissent in a 2014 affirmative action case, Sotomayor said that her conservative colleagues “fundamentally misunderstand” the consequences of racial bias and accused them of trying to wish away discrimination. Reading her opinion from the bench, she challenged Roberts directly. “The right way to stop discrimination on the basis of race,” she said, taking direct aim at his opinion in Parents Involved, is to “apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Biskupic observes that Roberts was deeply offended by the rebuke, so much so that he wrote what she calls a “how-dare-you” response in a two-page concurring opinion. Roberts rejected Sotomayor’s argument that it was “out of touch with reality” to believe that racial preferences in college admissions “do more harm than good.” He wrote, “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

As I read The Chief, I felt the way I imagine Sotomayor often does: wondering when, if ever, the scales might fall from Roberts’s eyes. It’s not a question anyone would ever ask of someone like Justice Samuel Alito or the late Antonin Scalia, perhaps because no progressives ever really think of them as “good guys.” But there is something about Roberts, the geniality or the way he makes everything he says sound so eminently reasonable, that gives the impression he could evolve. Conservatives certainly think this; they have accused him of being a closet liberal—a “squish,” as he himself would describe it—thanks to his 2012 vote upholding the Affordable Care Act. If Biskupic’s book is any indication, though, they’re probably wrong.

Roberts was a key player in the Reagan administration’s aggressive efforts to roll back affirmative action and other civil rights protections. Most importantly, he fought Congress’s attempts to strengthen the Voting Rights Act.

She says she spent twenty hours interviewing Roberts, but that he was a reluctant participant in the book. Much of what he said was off the record. The result is that the reader waits in vain for the moment when our protagonist might concede some level of shock about the aftermath of his decision in Shelby County. Or some miniscule indication that the police killings of Michael Brown, Philando Castile, Eric Garner, or twelve-year-old Tamir Rice might have chipped away at his view of the law as color blind. In 2017, neo-Nazis rioted in Charlottesville, and there are white nationalists in Congress and the White House. Yet Roberts refuses to offer even an inkling of introspection, much less any sort of recognition that perhaps the world hasn’t changed as much as he thought. 

With the replacement of Justice Anthony Kennedy by Brett Kavanaugh, a much more hardened conservative, Roberts now sits in the center of the Supreme Court. Liberated from the need to placate Kennedy to get to a fifth vote, he now will have free rein to push the Court even further to the right if he so choses. Some Court watchers have speculated that Roberts might instead align more often with Sotomayor and the liberal bloc in an effort to defend the Court’s image against charges that it’s too partisan, as he did in saving Obamacare. There are indications that Roberts might indeed be tacking toward the center. In February, he voted with the Court’s liberals to block a Louisiana anti-abortion law from taking effect. But the vote was a procedural one and had more to do with the ability of the high court to enforce its own precedent than with abortion. The case will come back to the Court again for a full airing on the merits, and there’s no guarantee Roberts will repeat his vote, or that it would be a predictor of how he might vote on any other contentious cases. 

Biskupic makes clear that there’s nothing in Roberts’s history to suggest that he’s prone to evolution. “[O]ver the course of his legal life, at a time when American social attitudes were changing rapidly, John Roberts was not changing,” she writes. “Central to his personality was a constancy, an immovability. He was fixed in his views.”

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Stephanie Mencimer

Stephanie Mencimer is a senior reporter at Mother Jones, an advisory board member at the Fund for Investigative Journalism, and the author of Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue. She was a Washington Monthly editor from 2000 to 2002.