July 10, 2013

Part 6 of the series, "The Structure of Lies in Conservative Jurisprudence".

Regardless of which laws he likes/He’s only calling balls and strikes.
Of balls and strikes that he has eyed/The union pitches all look wide.
When criminal defendants try/To throw a strike, it’s always high.
Consumers make for easy calls/Their pitches simply all are balls.
By chance, the pitches that are great—/The ones that nick or split the plate;
The ones deserving of ovations—/Are pitched by cops or corporations.
A left-wing lawyer sharp as Darrow/Will find the strike zone much too narrow.
Behind it, crouching, is the Chief/Quite confident in his belief:
Regardless of which laws he likes/He’s only calling balls and strikes.
--- Calvin Trillin

“Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.”
-- Chief Justice John Roberts at his confirmation hearing (2005)2

“Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
-- Justice John Paul Stevens, dissenting in Citizens United (2010)3

I stole the set of intro quotes above from an excellent report by the Alliance for Justice, "The Roberts Court’s Record of Overreaching", which I'll return to in a later installment. It makes a very important point: Roberts' claim, during his confirmation hearing, to adhere to a modest, self-restrained mode of judicial conduct was complete and utter bunk. It was not the same sort of concrete, discreet and palpable lies that Rehnquist and Thomas told in order to gain their seats on the Court, but it was an outrageous lie, nonetheless.

Not only was Roberts hiding an extremist conservative activist agenda, however, he did so by swimming in a veritable ocean of deceptive postures and narrative practices churned out by the right over the past several decades. What's more, he was not simply lying in order to get onto the Court, he was actually promoting a new sort of conservative lie, which has become increasingly important in the actual practice of conservative jurisprudence on the Court.

In discussing Roberts, I'm going to take a three-step approach. In Part One, I'm going to draw on commentary which argues that Roberts was positioned as the anti-Bork, deliberately fashioned to avoid all the avoidable pitfalls that did Bork in. Intellectually, I will argue, it was a trainwreck—but it succeeded politically.

In Part Two, I'm going to go a bit deeper, to an almost opposite form of argument, based on commentary from constitutional scholar Ronald Dworkin in the New York Review of Books. As Dworkin reveals, Roberts didn't just stealthily hew to rightwing orthodoxy in his confirmation process — he actually disavowed it at several different points, but then offered nothing specific in its place, leaving an utter void where one would expect a judicial philosophy, or vision of American democracy to be — a void that Roberts papered over with repeated hollow invocations of “the rule of law” or “balls and strikes” or “gone fishing with Huck” or some such garbage. This represents an evolution into utter lawlessness, which we've seen fully ripen in the gutting of the Voting Rights Act.

In Part Three, I'm going to return to the Alliance for Justice report, showing how the very problems that Dworkin warned about actually manifested themselves even before the Voting Rights Act decision.

Just before John Roberts' confirmation hearings, former Supreme Court clerk Edward Lazarus, author of Closed Chambers, wrote a Findlaw column, "John Roberts as the Anti-Robert Bork: How Roberts's Nomination, and Conservatives' Senate Hearings Strategies, Reflect Lessons Learned from the Bork Debacle", in which he first took note of some of Bork's liabilities. He was both an academic and a judge with a long history of taking sides on controversial issues, and an overarching judicial philosophy of orginalism that “gave his foes a chance to dream up lots of tough questions that Bork could answer only in one of two ways: by abandoning his allegiance to original intent, or by sticking with original intent and expressing politically unpalatable views. Either way, the foes won.”

Lazarus used the example of Brown v. Board of Education, which he called “the only true sacred cow: of modern Supreme Court decisions. “Brown is very difficult, if not impossible, to defend on the basis of the intent of the framers of the Fourteenth Amendment's equal protection clause. (As one example of the difficulty, the same Congress that drafted this Amendment funded a segregated school system in the District of Columbia.) But Bork could never disavow Brown - and so his opponents had a field day tying him in intellectual knots.” Add to that Borks “more mundane problems”: on TV, “he came across as smug and contemptuous - in a word, injudicious,” and it only got worse as his nomination floundered.

In contrast to all that, Lazarus wrote the following, painting a picture of a nominee seeming genetically designed to be everything that Bork was not:

Conservatives' Game Plan for Roberts: Make Sure He Comes Across as the Opposite of Bork.

But Roberts has charisma and humor to burn. And in that respect - as well as the others mentioned above, President Bush -- and Roberts himself -- are sticking closely to an "opposite of Bork" game plan.

On a personal level, the image Roberts projects could not be more different from Bork's. On the crassest level, Roberts is telegenic and soft-spoken, whereas Bork was neither.

But the dissimilarity also runs much deeper. Roberts's writings as a young Turk in the Reagan Justice Department suggest that, at least at one time, he was a hard-edged "movement" conservative. But unlike with Bork, Roberts's rough edges seem to have been smoothed away: He now projects the image of a modest and thoughtful legal craftsman who, despite strong conservative convictions, is the kind of collegial and open-minded conservative with whom liberals can have a meaningful dialogue.

Roberts is doing everything possible to reinforce this impression. In answering the Senate questionnaire about his views, Roberts went out of his way to emphasize the modesty and humility with which he approaches the task of judging, and the deep respect he has for the views of his colleagues and predecessors on the High Court.

A cynic might say you needed some tall waders to get through some of Roberts's answers, but in the "not-Bork" playbook, the appearance of arrogance is a potentially fatal flaw. Roberts is avoiding this assiduously.

Similarly, Roberts is not burdened by a Bork-like record of speaking out in his own voice on controversial issues. Roberts certainly shares Bork's level of accomplishment, but Roberts's accomplishments (unlike Bork's) are of a kind that have allowed him to avoid taking a lot of public positions on his own behalf. In particular, because Roberts was never an academic and only briefly a judge, he has spent most of his illustrious career taking positions as a lawyer for others, rather than taking positions for himself.

The nature of Roberts's career gives him a double layer of protection. To begin with, he can deflect criticism of the legal positions he advocated (such as calling for the overruling of Roe v. Wade while in the first Bush Administration) on the ground that he was acting merely as a lawyer advancing his clients' views, rather than his own.

In addition, Roberts and the Administration can resist efforts to discern his views through the release of internal memoranda, by invoking the attorney-client privilege....

Finally, Roberts presents a sharp contrast to Bork in judicial philosophy. Roberts is already on record strongly disclaiming an allegiance to any particular theory of constitutional interpretation, such as original intent jurisprudence. Roberts says that he picks and chooses what interpretive tools to use (such as textual analysis, historical analysis, or reliance on precedent) depending on which tools seem best to fit a particular case.

This approach has the twin benefits of sounding exceptionally reasonable, and of giving Roberts plenty of wriggle room to avoid the traps that were laid for Bork.

Liberals were right to distrust this, as history has amply shown. But they weren't just guessing. Among the issues that Roberts had weighed in on under the guise of “just doing his job” as a Reagan Administration lawyer in the early 80s was attacking the Voting Rights Act—a subject we'll be returning to in the future. (See, for example, "Chief Justice Roberts' Long War Against the Voting Rights Act".). So liberals knew very well what they were in for. But they were severely constrained by the formal and informal rules of judicial nominations as conservatives have struggled to redefine them.

In sharp contrast to what had become expected and acceptable, another Findlaw columnist, Vikram David Amar, wrote a series of three columns (here, here, and here) in which he first argued that "the only way to get a sense of John Roberts's current legal views - and getting such a sense is, after all, the main point of his Senate confirmation hearings -- is to pressure him to assess actual past cases," and then presented a detailed list of cases with the reasons each should be asked about.

Such an approach, Amar argued, "is completely constitutionally and ethically permissible: So long as no promises or commitments are sought or given as to future votes on the Court, both Article III judicial independence and a meaningful Senate confirmation role can be preserved." Of course Amar was correct, and of course he was ignored. The last thing in the world that conservatives wanted was for the Senate and the American people to have the slightest clue of what John Roberts' lifetime appointment would mean. They adopted the stance that "you have no right to know"—yet another lie—and they stood with it.

Of course, this amounts to saying that the Senate's constitutional duty to “advise and consent” is utterly meaningless, and that's precisely what conservatives believe... when the president is one of their own. When the president isn't one of theirs, they aren't really president at all (see the Birthers and the 6-year effort to impeach Clinton) and thus have no right to nominate anyone at all, as seen in the unprecedented level of obstructionism that President Obama's nominees have meet for virtually position imaginable.

And so we got the most transparent charade imaginable, in which Roberts' most memorable declaration was a palpable lie—that he saw his role as entirely non-ideological, technical, and mundane: he was to be an umpire, “calling balls and strikes”, nothing more. Here is that passage from his opening statement:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.
Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Even in this brief passage, Roberts' lie begins to expose itself, since umpires aren't known for their modesty at all. They are known for acting like God. And—aside from exceptional circumstances, typically when one umpire's view is obstructed—they don't consult with “the considered views of their colleagues”, rather, they back each others snap judgments to the hilt. So the umpire metaphor doesn't actually do the job that Roberts wants it to do. But no matter, everyone more or less agreed to pretend that it did.

More basically, however, the umpire's role can only fairly be used to describe what trial court judges are called on to do—as Roberts said, to apply the rules. Appeals court justices are called on to do something quite different. It begins with double-checking to see if the trial court judged did their jobs, but this inevitably begins a drift into deeper waters, as it often involves matters of interpretation, which is really the most central function of the appeals court system. Years later, Obama's nominee Sonya Sotomayor got into a bit of trouble for a taped comment she had made to the effect that appeals court judged “make policy”—a strikingly different picture of what justices do. Yet, for any experienced judicial observer, Sotomayor's comment was as plainly and obviously true as Roberts' umpire claim was false.

As a reporter over the years, I've covered several major cases arising from local environmental disputes. (One of them even reached the Supreme Court this past term.) I've read the written arguments. They are regularly shot through with questions of judicial policy, which is to say, with lines of argument about how conflicting and contrasting laws, principles and previous rulings fit together to lead to one result rather than another. There is simply no way to understand what's being said in them if one does not understand that basic fact. When appeals courts hand down their rulings, they argue similarly, and what they argue in a given case becomes part of the body of controlling precedent—or judicial policy—for all the courts over which they have jurisdiction.

Conservatives may find this basic reality of how appeals courts work infuriating, because it violates their black-and-white distinction between “strict interpretion of the law” and “legislating from the bench”, but the fury ought to be directed at themselves for coming with such an idiotic formulation in the first place.

These two points—that umpires aren't modest and collegial, and that appeals court justices don't call balls and strikes—are sufficient to show that Roberts' confirmation hearing testimony was founded in deceit—a deceit that was, if anything, far more considered, calculated, and fundamental than the lies told by William Rehnquist and Clarence Thomas before him. But it was also far more successful, politically. There was no lingering bad taste as a result of Roberts' umpire lie. To the contrary, he was regularly and repeatedly applauded for it. It was far and away the most successful conservative confirmation lie of all. And yet, it was just the tip of the iceberg, as pre-eminent legal scholar Ronald Dworkin explained in a lengthy discussion in the New York Review of Books. I will turn to a discussion of that analysis in Part Two.

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