by Marcia Coyle
Hearings on Supreme Court nominations today appear to be more about the political agendas of the individual senators than about what is in the mind of the nominee. There was little in Roberts’s only forty-nine opinions as an appellate judge for skeptical Democrats on the Senate Judiciary Committee to use to show him as an ultra or radical conservative. But he had been a foot soldier in the Reagan administration, where he had worked as a young lawyer in the Department of Justice, first as a special assistant to Attorney General William French Smith, and afterward as associate counsel to President Reagan in the Office of White House Counsel. Roberts’s memos on a variety of controversial legal issues during those years as well as his legal briefs when he served as deputy solicitor general in the George H. W. Bush administration provided a paper trail for those who sought to derail his nomination or who, accepting that he was a conservative, honestly wondered, or feared, how far to the right he might lead the Court.
The hearings revisited the Reagan legal revolution of the 1980s in which the administration strategically sought to remake the judiciary with young conservative appointees. Top advisers, such as William French Smith and Edwin Meese, accused the federal courts—and the Supreme Court in particular—of straying from the Constitution’s text by finding a right to an abortion, approving affirmative action, and enforcing anti-discrimination laws too aggressively. Democrats also revisited Rehnquist Court rulings restricting abortion, affirmative action, voting rights, and civil rights laws involving disabilities and sex discrimination, among other issues. Roberts’s memos and legal briefs reflected a keen commitment to the goals of the administration in which he worked at the time.
When the hearings opened, the public saw a youthful nominee, leaning forward in his chair at the witness table in front of the Judiciary panel, earnest and yet relaxed, much as he is today during Supreme Court arguments. He quickly displayed a broad and deep knowledge of a range of constitutional areas and gave his answers to questions with a polish developed during years of appellate arguments in the federal courts. He also deflected more probing questions about positions taken in his memos—positions largely rejected by Congress—by saying he was acting as a lawyer for his client, the president, and advocating for his client’s positions.
“John Roberts is a master at the sort of gentle, persuasive answers that don’t go to the nub of what they want to know,” said one supporter at the time.
Central to all Supreme Court confirmation hearings is an attempt by senators to define the nominee’s judicial philosophy and faithfulness to stare decisis (respect for previously decided cases). The latter was hugely important to those who wanted to preserve or overturn such rulings as the landmark abortion case, Roe v. Wade.
Senator Orrin Hatch, Republican from Utah, pressed Roberts during the hearings on his judicial philosophy. Hatch noted that he had recently read a book in which the author, legal scholar Cass Sunstein, discussed various judicial philosophies. “Some of the philosophies he discussed were whether a judge should be an originalist, a strict constructionist, a fundamentalist, a perfectionist, a majoritarian or a minimalist. Which of those categories do you fit in?” he asked Roberts.
As he has ever since, Roberts resisted a label. “I have told people when pressed that I prefer to be known as a modest judge, and to me that means some of the things that you talked about in those other labels,” he told Hatch. “It means an appreciation that the role of the judge is limited, that a judge is to decide the cases before them, they’re not to legislate, they’re not to execute the laws.
“Another part of that humility has to do with respect for precedent that forms part of the rule of law that the judge is obligated to apply under principles of stare decisis. Part of that modesty has to do with being open to the considered views of your colleagues on the bench. They’ve looked at the same cases. And if they’re seeing things in a very different way, you need to be open to that and try to take another look at your view and make sure that you’re on solid ground.
“Now, I think that general approach results in a modest approach to judging which is good for the legal system as a whole. I don’t think the courts should have a dominant role in society and redressing society’s problems. It is their job to say what the law is.”
And in perhaps one of his most memorable comments in those hearings, Roberts compared the job of a judge to that of a baseball umpire—the analogy that had stuck with Bush: “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical to make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire . . . . And I will remember that it’s my job to call balls and strikes, and not pitch or bat.”7
Senator Arlen Specter, committee chair and Republican from Pennsylvania, took up the question of Roberts’s view of stare decisis. Specter, a moderate Republican and longtime supporter of Roe v. Wade, probed Roberts as hard as he could, in the context of that abortion ruling, on his faithfulness to precedents of the Court. Specter and other defenders of Roe had reason to be suspicious of Roberts’s view of the Roe decision. As a lawyer in the Reagan administration, Roberts had written legal memos defending the administration’s anti-abortion policies. And as deputy solicitor general in the George H. W. Bush administration, he had signed a brief urging the Supreme Court to overturn Roe.
To Specter’s questions on stare decisis, Roberts said, “I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the Court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.”8
But as to Roe v. Wade, Roberts would only say that the decision is “settled as a precedent of the court, entitled to respect under principles of stare decisis.”
In his last round of questions, Democratic senator Charles Schumer of New York said the “fundamental question” facing the Senate and the public was: “What kind of justice will John Roberts be? Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly? Will you be a very conservative judge who will impede congressional prerogatives but does not use the bench to remake society, like Justice Rehnquist? Or will you use your enormous talents to use the Court to turn back a near century of progress and create the majority that Justices Scalia and Thomas could not achieve?”9
That question was very much on the minds of the justices and their clerks on that first Monday of Roberts’s first day as chief justice of the United States. As the coming years and cases would show, the answer to the question would be: Roberts shares some of the qualities of all of those justices, and he is unafraid to deliver a major “jolt” to the system if he disagrees with the law’s direction.
During his confirmation hearings, Roberts had said he admired Chief Justice John Marshall, the nation’s fourth chief justice and considered its greatest. He spoke of Marshall’s ability to achieve consensus among his colleagues. From 1801 until 1835 when Marshall died, the Court generally did speak with one voice and often in Marshall’s own voice. Of some 1,000 opinions during that period, Marshall wrote more than 500.
Some senators pressed Roberts about the large number of 5–4 decisions and separate concurring and dissenting opinions being issued in recent years. By the end of his hearings, Roberts had made clear two goals as chief justice: greater consensus on the Court and minimalism—a preference for narrow decision making.
As he would explain in a speech in the spring of his first term, “If it is not
necessary to decide more to a case, then in my view it is necessary not to decide more to a case. Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.”10
Consensus, minimalist decision making, respect for prior precedents—Roberts had laid down the markers of his tenure on the Supreme Court.
As the first term of the Roberts Court got underway, the docket offered a trove of potential blockbuster cases that could test Roberts’s triple goals. Awaiting arguments were cases involving a minor’s access to abortion, disabled prisoners’ right to sue states under the nation’s law against disability discrimination, a clash between the federal government and Oregon’s assisted suicide law, and religious use of a hallucinogenic tea containing a drug banned by federal law. And waiting in the wings was a case likely to define the term: an appeal questioning the legality of the Bush administration’s military commissions for trials of Guantánamo Bay detainees.
The justices had moved only through their first session of oral arguments when news broke that White House counsel Harriet Miers, nominated to replace retiring Justice Sandra Day O’Connor, had asked that her nomination be withdrawn. President Bush wasted no time in naming a successor, and on October 31, he turned to a contemporary of Roberts for the nomination: Samuel Alito Jr., fifty-five, a judge on the U.S. Court of Appeals for the Third Circuit. In 1981, the same year Roberts joined the Reagan Justice Department, Alito, a former federal prosecutor, began work there as an assistant to the solicitor general and later, in a promotion, as deputy assistant attorney general in the Office of Legal Counsel—the same office in which Chief Justice Rehnquist and Justice Antonin Scalia once had served as Nixon appointees.
The Alito confirmation, however, was months away, and the Court had a high-stakes docket to confront. O’Connor and the rest of her colleagues were in an unusual position that fall. Neither knew when she would be leaving the bench. And her votes in cases would be effective only if the decisions were issued while she was still sitting.
As the term unfolded, the new chief justice appeared to be making considerable headway on his goals. From October 3, 2005, until O’Connor left the Court at the end of January 2006, the justices issued nineteen decisions; twelve were unanimous and only two were by 5–4 votes. The 5–4 decisions involved a death penalty case, in which the majority, consisting of Roberts, O’Connor, Scalia, Kennedy, and Thomas, ruled against the prisoner; and a bankruptcy case, in which the majority, with Stevens, O’Connor, Souter, Ginsburg, and Breyer voting, rejected a state’s claim of sovereign immunity from suit. Both decisions reflected the importance of O’Connor as the longtime “swing” vote.
The unanimous decisions included what many observers thought would be one of the term’s most controversial issues: its first abortion case in five years. The case—Ayotte v. Planned Parenthood of Northern New England—began as a challenge to a New Hampshire law barring doctors from performing abortions for teenagers under the age of eighteen until forty-eight hours after a parent has been notified. Contrary to past Supreme Court decisions, the law had no exception for medical emergencies when necessary to protect a pregnant teen’s health, only the teen’s life. The lower courts had struck down the law because of that omission.
But O’Connor, writing for the Court, said the lower courts acted too broadly by striking down the entire law. “When a statute restricting access to abortion may be applied in a manner that harms women’s health, what is the appropriate relief?” she asked. “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact.”
She said the lower court should find a solution short of invalidating the entire law. The case was sent back to the lower court with instructions to craft a narrower remedy and to determine if that remedy would be consistent with what the state legislature had intended.
O’Connor read a summary of her decision from the bench on January 18, 2006. It was her last decision as a justice. Thirteen days later, on January 31, she officially retired from the Court. That same day, Samuel Alito Jr. was confirmed by the Senate as O’Connor’s successor and took his seat as an associate justice.
Alito’s replacement of Sandra Day O’Connor would be as critical a change on the Roberts Court as that of Clarence Thomas for Thurgood Marshall on the Rehnquist Court. Combined with the arrival that month of two cases challenging the race-based assignments of public school students, the stage was set for the true unfolding of the Roberts Court era.
CHAPTER 2
“I said this before I even knew who Sarah Palin was, ‘I’m a momma bear just protecting her cubs.’ I said, ‘This race tiebreaker, this just isn’t right.’ ”
—Kathleen Brose, head of Parents Involved in Community Schools, 2011
On a crisp morning the following December, a chill wind cut unforgivingly across the wide plaza in front of the Supreme Court and through the crowd of several thousand amassing at the plaza’s steps. The mostly high school and college-aged demonstrators waved signs urging the justices inside to “Save Brown v. Board of Education” and “Fight for Equality” as they chanted: “Jim Crow? Hell, no! We won’t go!”
As they prepared to march down Capitol Hill toward the Lincoln Memorial, the line of people hoping to get seats in the courtroom that day continued to grow on the Supreme Court’s plaza under the watchful eyes of the Supreme Court police.
At 10 am sharp, the courtroom buzzer signaled those inside to stand as the justices stepped from behind the maroon velvet curtain and prepared to hear the first arguments of the day. On the calendar that morning were two cases that embodied the nation’s long and divisive struggle with racial discrimination. By the end of the Supreme Court term, the opinions in the two cases would reflect shattered hopes for greater consensus among the justices and bitter feelings of betrayal on both sides of what had emerged as the deepest divide on the fledgling Roberts Court.
The justices were being asked to judge the constitutionality of attempts by local, elected school boards in Seattle, Washington, and Louisville, Kentucky, to maintain racial diversity in their primary and secondary schools.
A group of Seattle parents whose children did not get into their top choices of high schools challenged the constitutionality of the district’s use of race as one factor in its student assignment plan. And a Louisville mother whose son could not attend the kindergarten program closest to his home initiated the lawsuit attacking that district’s diversity plan.
These were not the first race-related cases to come before the new Roberts Court. In its first term, the 2005–06 term, the Roberts Court, which by then included Justice Samuel Alito Jr., took up a challenge to a congressional redistricting plan drafted by the Texas state legislature mainly to protect and enhance the chances of Republican candidates. In highly splintered opinions, the Court largely upheld the Texas plan but struck down one congressional district because it diluted the voting power of Latinos in violation of the federal 1965 Voting Rights Act.
It was in the Texas case—LULAC v. Perry—that Chief Justice Roberts, who dissented from the decision’s holding on the constitutionality of a Latino district, wrote a line that was, at once, both striking and ominous to civil rights groups: “It is a sordid business, this divvying us up by race.”
A redistricting case—complex, highly partisan, and, in the end, local—was unlikely to capture the attention and emotions of many Americans, not like a school case could. Most parents either had or soon would have to deal with finding the best possible schools for their children and with their districts’ plans for assigning students. The Seattle and Louisville cases had an additional element: they put in play the meaning and continuing import of the revered Wa
rren Court 1954 landmark ruling that struck down school segregation: Brown v. Board of Education.
From Brown going forward, the Supreme Court and lower federal courts had struck down laws and policies that used race to separate children in public schools. The Supreme Court had never ruled in a case where the challenge was to the voluntary use of race to achieve the benefits of diversity and to end racial isolation of students.
The Seattle and Louisville cases would offer the first close-up look at the views of Roberts and Alito on whether racial diversity was a compelling interest in elementary and secondary education.
David Engle stood in the line on the Court’s plaza that morning and tried to keep warm. He had arrived early to increase his chances of getting into the arguments, but not as early as a group in front of him who had camped out Sunday night, braving freezing temperatures, to be first in line.1
Engle had not planned to attend. The trip from Seattle was long and expensive. And besides, he had moved on. Four years earlier, he had resigned as principal of Ballard High School in Seattle in protest of the district’s decision to drop the so-called race tiebreaker in the district’s “open choice” assignment plan even as it continued to defend it in the courts. A student’s race was one of three considerations used by the district to fill slots at oversubscribed high schools whose student populations deviated more than 15 points from the districtwide racial demographic of 40 percent white and 60 percent non-white.
Before becoming Ballard’s principal, the silver-haired, soft-spoken Engle had been a high school principal in a district across the lake from Seattle. He was drawn to Seattle by Superintendent John Stanford’s vision for the school district and its growing success in increasing diversity in the predominantly white schools in north Seattle without the heavy hand of forced busing.
