Chief Justice John Roberts Jr.
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.