A Supreme Court Biography That Should Be Held In Contempt

A Supreme Court Biography That Should Be Held In Contempt

CNN legal analyst Joan Biskupic's biography of Chief Justice John Roberts, 'The Chief,' is so preoccupied with disagreeing with the man that it doesn't provide much insight into Roberts's life and rulings.
Tony Daniel
By

Joan Biskupic has delivered the book on U.S. Supreme Court Chief Justice John Roberts that we might expect from a CNN legal analyst and Nina Totenberg heir apparent. Nobody expects a biographer to be as smart, able, or skilled as his subject, and Biskupic doesn’t challenge that notion in the slightest with The Chief: The Life and Turbulent Times of Chief Justice John Roberts

The book begins as biography, but soon becomes a repetitive bout of liberal scolding, mostly to do with her conception of civil rights, that goes on for seemingly endless pages. Biskupic’s The Chief is mostly false generalization and faux-genial nonsense filled with cloying journalistic condescension toward Roberts and everything he believes in.

The book leads off with a longish digression on the ethnic origins and socio-economic background of Roberts’s parents and grandparents. Roberts’s father was an assistant plant manager with U.S. Steel. Biskupic delivers a bare recounting of Roberts’s childhood in Youngstown, Ohio and his teenage years in Long Beach, Indiana. She juxtaposes Roberts’ suburban upbringing with various civil rights happenings going on in the late 1950s and early ’60s.

It is neither ironic nor particularly informative to learn that the Selma March or George Wallace grandstanding on the University of Alabama campus had very little effect on a pre-teen Roberts, but we are treated to multi-page recountings of such well-known events nonetheless. Biskupic might better have spent her time and our attention on young Roberts’s nearby environs, his friendships, activities—and the development of his deep religious faith grounded in the Catholic Church. Instead, we get a lot of bewilderment that a smart boy like that didn’t grow up to become a proper liberal.

‘Mr. Everything’

We do learn that Roberts was an overachieving, nervous young man who determined his course early on (and gave himself stress-induced stomach troubles that would last until the present). At 13, he applied for a spot in newly formed Catholic boarding school La Lumiere in South Bend, Indiana, not far from his home. Biskupic reproduces his application letter, which is quite well written and convincing, and a youthful foreshadowing of Roberts’s later, justly famous advocacy of positions as an appellate court lawyer.

Roberts proceeded to blaze through his high school as he would soon do at Harvard University, where he majored in history, and then at Harvard Law School, where he was managing editor of the law review. Roberts had smarts to spare, but the key to his personality seems to be an ability to drive himself mercilessly to work. Biskupic points out that the chief justice essentially hasn’t varied his work routine much since getting into La Lumiere.

Roberts clerked for Second Circuit Court of Appeals Judge Henry Friendly and directly after that for Supreme Court Justice William Rehnquist (who was not yet the chief when Roberts clerked for him). Roberts went on to serve in two positions in the Reagan administration, first as an assistant to Attorney General William French Smith’s chief of staff Ken Starr. He then moved to the White House General Counsel’s office under attorney Fred Fielding.

When Bill Clinton was elected, Roberts left government service and began his appellate court practice at Hogan and Hartson, which eventually made him a fortune. He returned to public service under George W. Bush a wealthy man.

Ken Starr has perhaps the most astute observation on Roberts’ personality when he states, “I think his deeply Catholic upbringing and his going to an intellectually stimulating high school are at the roots of his character. He was able at that high school [La Lumiere] to be Mr. Everything.”

“Mr. Everything” will be a good title for the eventual popular biography of Roberts that tells a more accurate story. Roberts chief flaws are the things you admit to in a job interview. “I work too hard, I guess,” or “I’m a studious introvert at heart, but I’ve learned to be extroverted when called for.” In Roberts case, these would be true.

Here, one wishes for more such personal detail rather than Biskupic’s wearisome ideologically slanted litany of recent historical events, and her disapproval of Roberts’ take on them. Here is her pronouncement on Roberts’ thoughts concerning voting rights case Shelby County v. Holder, for instance:

Roberts also asserted that the ‘effects test’ would create a right to a quota-like ‘proportional racial representation’ on city councils and all forms of government.

That contention was not true. Nor was it true that no evidence of voting rights abuse existed. Race discrimination in voting was still widely documented, particularly in southern states such as Alabama.

This is one of many instances where Biskupic calls out Roberts’ considered opinions as factually false—she simply negates them as if the chief justice were an errant school boy—in a manner that suggests she has had a dispensation of truth from on high (or, perhaps even better, from Lawrence Tribe). Here’s another:

Overall, Roberts revealed just how fundamental his objection to race-based policies was. He had long believed that the Constitution’s equal protection clause was intended to ensure that people were treated as individuals, rather than as members of a group that could be singled out for certain treatment based on skin color. This reasoning sounded logical enough, but Roberts’s view was (and is) belied by reality.

Oh, really? Or is it actually spot-on, since prima facie it obviously is? Biskupic is convinced that she not only knows better than the chief justice of the U.S. Supreme Court, she is also in a position to give him a talking-to on the matter. The lecture doesn’t take the form of a point-by-point rebuttal but an offhand dismissal of Roberts’ beliefs as either childish or inexplicably perverse. After all, everybody who is anybody knows that white Alabamans are a bunch of racists!

In fact, here and elsewhere Biskupic imagines Alabama in particular, and the deep south generally, in terms of a newsreel image from 1962. Her characterization of the facts in Shelby County v. Holder indicates she believes she’s dealing with a downtrodden rural backwater of a county, rather than an area that has for decades contained a collection of Birmingham’s nouveau riche suburbs feeding off the city’s financial, technological, and bioengineering renaissance. Birmingham has had a black mayor since 1979, by the way—seven in all. Biskupic makes continual wild generalizations about the state, and amply demonstrates she doesn’t know what she’s talking about.

Biskupic seems to inhabit a world where only race and sex have moral weight, and free markets are not to be trusted. We get plenty on Shelby County and Citizens United. Nothing on important Second Amendment Supreme Court decisions, and mere mentions of eminent domain limitations or intellectual property rights. Kelo might as well never have been decided.

Almost needless to say, Biskupic’s isn’t living in the world where Americans have resided for the past three generations. Bull Connor and Pan Am are no longer with us, but rapid technological innovation and economic shuffling (and huge improvements for most Americans) most certainly have been the hallmark of the past 30 years.

Complex Questions?

After a long section on Reagan-era doings (and the implication that President Reagan and his team were probably closet racists), we finally get back to reality, and find that Roberts, the consummate workaholic, did not get around to marrying until his mid-forties. Or, to be more charitable, he did not meet Jane Sullivan, the right woman, until then.

Unfortunately, John and Jane had trouble conceiving, so the Robertses ended up adopting (through serendipitous chance via two agencies) boy and girl newborns separated by five months. Roberts returned to public service and was appointed an appellate judge when Republicans returned to power under George W. Bush. This meant that Roberts’ years as an appellate judge on the DC Circuit were also his years as the father of toddlers.

When we get to Roberts’ Supreme Court years, Biskupic entirely abandons biography for scolding. Biskupic’s rhetorical style is grounded in the fallacy of the complex question. She presents herself as if in a constant state of amazement that the chief justice of the Supreme Court might disagree with her.

To explain this, Biskupic finds the nearest semi-relevant Roberts quote for an answer to a “how often do you beat your wife” type of question, then takes that response out of context, excoriating the justice for being either narrow-minded or perverse—or both. It is a wearying tactic for the reader who is actually interested in considering Roberts’s opinions, and seemingly the only arrow in Biskupic’s writerly quiver.

What Biskupic most takes issue with is Roberts’ interpretation of civil rights laws, particularly the 1964 Civil Rights Act, as meant by Congress to be colorblind. “Roberts believed that policies classifying students based on skin color simply had not worked over the years, and, in fact, that they had exacerbated racism,” she says.

Of course, Biskupic is quick to then point out that Roberts’ view “belies reality.” Why that might be so is more a bit more problematic to explain, so Bisklpic goes for the old standby, expert testimony. The experts, in this case, are “social scientists.”

Undergirding Brown had been evidence that black children suffered when confined to all-minority schools and that children placed in integrated schools improved academically. A large group of social scientists submitted an amicus brief to the Court in the new cases saying that evidence continued to support the finding that members of racial minorities benefited from integrated schools. They told the justices that many school districts had become resegregated.

Well, that settles it. What was Roberts thinking?

Furthermore, Biskupic seems to hold in contempt the idea that America has largely realized the aim of the act, and its provisions are nowadays mostly irrelevant to modern society. Like most of the legal academic establishment with which she identifies, she can’t let a surreal vision of the 1960s go, including a wildly overestimated view on the relative importance of lawyers during that time.

The Mandate

Biskupic rightly spends considerable time on Roberts’ most controversial ruling as an individual justice, National Federation for Independent Business v. Sebelius, the Obamacare individual mandate case. Biskupic says the chief at first sided with justices Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. But Roberts was never happy with invalidating a law as passed by Congress. It was his bedrock assumption, stated time and again, that judges are supposed to be umpires, not political players. He believed the individual mandate was invalidated by the Commerce Clause in the Constitution that gives Congress the power to regulate commerce, but not the power to compel individual purchases.

But instead of throwing out Obamacare, he sought a way to save what was, for better or worse, the current law of the land as passed by a democratically elected Congress. He did not want to nullify it via what he viewed as judicial activism—in this case originating on what was perceived to be the right. To do so ran against his conservative instinct.

Roberts found his answer in the taxation authority of Congress, which had been a secondary supporting argument by Eric Holder’s Justice Department team:

President Obama had tried to avoid the term ‘tax.’ But for the legal case, administration lawyers said the individual mandate operated on a practical level as a tax. The penalty for not purchasing insurance was based on a percentage of household income and had to be recorded on annual income tax forms.

Roberts’s colleagues on each side of the issue seemed to be nonplussed by his decision to rule the Obamacare individual mandate as ultimately constitutional because it fell under Congress’s taxing power. Roberts, of course, got no credit from the left for careful thinking, and there was a great deal of speculation on the right that Robert was truckling under to Washington political culture and threats to pack the court from the Obama administration.

A third option would be to take the chief at his word and, agree or disagree, and allow that he came to his decision in good faith and after a great deal of intellectual wrangling.

An Incomplete Portrait

One unintended consequence of Roberts’s decision in National Federation for Independent Business v. Sebelius is to invalidate the thesis of Biskupic’s entire book. Biskupic states time and again that Roberts is hidebound and fixed in his ways regardless of facts or circumstances, yet she remains notably silent on a Roberts decision that went the way she wanted it to.

Thus far in Roberts’ tenure as chief, it seems clear to an observer without ideological blinders that Roberts is very much an American centrist on judicial philosophy. Perhaps because he is chief justice, he has adjusted his rightward stance and is coming down about where the center of the country would come down politically. This is manifestly not the extremist position where Biskupic or the legal academy so often find themselves, and label “the center.” Biskupic’s idea of a centrist is perhaps someone like David Souter or Elena Kagan.

Moreover, viewing Roberts as a centrist explains both his infamous split-the-difference decision in the Obamacare individual mandate case, as well as his appalled dissent to the Supreme Court’s gay marriage decree in the Obergefell v. Hodges ruling, where he stated that there is nothing in the Constitution about gay marriage, adding that the legislatures were already allowing the issue a national airing, and the court was only going to freeze into place animosities that would otherwise have worked themselves out in the political arena. In both cases, Roberts is working from a thought-through judicial philosophy. He may be wrong, even misguided, but he seems neither squish nor bigot.

As far as Biskupic’s incomplete portrait is concerned, perhaps the reader could fill it in by considering that the reason Roberts had held onto so many beliefs and opinions from his younger days is that, his erstwhile biographer’s claims to the contrary, those convictions turned out to be correct.

Tony Daniel is the author of 11 fantasy and science fiction novels, the latest of which is young adult fantasy, "The Amber Arrow." He’s also an award-winning short story writer. Daniel has co-written screenplays for monster movies that appear on the SyFy and Chiller Channels including the films "Beneath" and "Flu Birds." Daniel is also a senior editor at Baen Books. His website is tonydaniel.com.

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