The Life and Turbulent Times of Chief Justice John Roberts
By Joan Biskupic
Basic Books. 421 pp. $32
Reviewed by David Copeland
In today’s America, the Supreme Court of the United States is an institution both revered and disparaged. Presidential campaigns often focus on the president’s power to nominate new justices upon the death or resignation of one of the court’s members (eight associate justices and one chief justice). “The Chief” — to use the traditional nickname — runs the court (for example, he or she decides which justice will write a majority opinion in which the chief joins) and has other duties, such as presiding over presidential impeachment trials in the Senate. The chief is generally considered the head of the federal judiciary. Since John Marshall, the fourth chief justice, wrote Marbury v. Madison — which established the principle that federal courts have the authority to review the constitutionality of acts of Congress — it has been apparent that the position of chief justice, in a word, matters.
Enter John Roberts. After graduating with honors from Harvard College and Law School, Roberts worked as a law clerk for Chief Justice William Rehnquist, as a lawyer for President George H.W. Bush, and as a partner specializing in appellate litigation in a Washington law firm. In 2003, the second President Bush appointed Roberts as a judge on the D.C. Court of Appeals. Two years later, Bush chose Roberts to replace the retiring Justice Sandra Day O’Connor on the U.S. Supreme Court. Months later, after the death of Chief Justice William Rehnquist, Bush nominated Roberts to replace Rehnquist and named Samuel Alito to replace O’Connor. Roberts was confirmed by a vote of 78-22 after a confirmation hearing in which he declared his respect for stare decisis (the legal doctrine under which precedent is generally respected) and famously said: “Judges are like umpires.”
Enter Joan Biskupic. She is the author of three biographies of Supreme Court justices: O’Connor, Antonin Scalia, and Sonia Sotomayor. Biskupic has now written a fourth, turning her attention to the current chief justice, widely regarded as a key figure in the current judicial landscape. Why? Because after the resignation of Justice Anthony Kennedy — a conservative jurist who tilted left on social issues such as abortion and same-sex marriage — Chief Justice Roberts appears to have emerged as the “center” of a U.S. Supreme Court typically viewed as conservative by a 5-4 ratio, the vote of the chief being determinative.
But if The Chief has one dominant theme, it is that in cases involving race, voting rights, or corporate speech — as well as the social issues referenced above — Roberts consistently votes with and often leads the other conservatives on his court. According to Biskupic, Roberts may be at the center, but he is no centrist.
Why, then, has Roberts been called a “disaster” by the current president and others in the Republican Party? The answer is the Affordable Care Act. In the National Federation v. Sebelius decision of 2012, Roberts agreed with his fellow conservatives that the ACA’s “mandate” — which required adult citizens to have health insurance or pay a penalty to the IRS — violated the Commerce Clause of the U.S. Constitution. However, in a surprise twist, Roberts upheld the mandate as an exercise by Congress of its broad power of taxation. Thus, the court upheld the ACA by the single vote of the chief justice. A few years later, in King v. Burwell, Roberts wrote a 6-3 opinion that rejected the argument that the ACA allowed federal tax credits only for insurance payments to state exchanges but disallowed tax credits for payments to the federal exchanges (which would have negated millions of dollars in deductions).
The Chief makes a big deal out of the revelation that in Sebelius, Roberts initially sided with the justices who favored a clear ruling that the ACA mandate was unconstitutional but switched sides late in the game. In other words, the umpire reversed his call. Why? Was it, as Biskupic suggests, because Roberts decided to act “like a politician” to heal the country and preserve the institutional legacy of his court? Perhaps, but Biskupic earlier states that Roberts “was genuinely concerned about invalidating an entire law that had been approved through the democratic process.”
That assertion is also consistent with King v. Burwell, in which the chief justice acknowledged that some language supported the notion that federal tax credits should be limited to payments to state exchanges but then rejected that interpretation because “Congress passed the [ACA] to improve health insurance markets, not to destroy them.” Thus, considered together, the ACA opinions of Chief Justice Roberts reflect a conservative judicial philosophy that rejects judicial activism in the face of clear legislative intent.
To be fair, Roberts is far from consistent in his deference to legislative intent, as critics of his treatment of the Voting Rights Act in the Shelby case are quick to point out. But for readers interested in understanding what makes John Roberts tick — as a devoted husband and father as well as a chief justice — The Chief is a solid work of legal journalism that rewards those willing to read carefully. It may be true, as Biskupic reports, that Roberts “believes that any biographical endeavor would be best undertaken when he is long gone from the Court.” But when that biography is written, the author could do far worse than to start by reading The Chief.
David Copeland’s legal career has focused on antitrust litigation and counseling; he lives in the Pocono Mountain region.