More on the Right's Judicial Elitism
by Jonathan Singer, Mon May 18, 2009 at 12:53:11 PM EDT
Over the weekend, I wrote about a key aspect of the right's strategy on the judiciary -- arguing that every Supreme Court nominee must, in effect, look and sound just like Antonin Scalia. A corollary of the strategy is to call for someone like Chief Justice John Roberts, a conservative with the pedigree of Scalia (having served on the Court of Appeals for the D.C. Circuit), who during his confirmation hearings purported to approach the judicial decision-making process in much the same way as an umpire approaches a baseball game (that is to say just calling balls and strikes, not changing the strike zone or, in the context of the courtroom, not bending the law). But as Jeffrey Toobin reports in The New Yorker, Roberts isn't living up to his pre-confirmation spin.
Roberts's hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. "Judges are like umpires," Roberts said at the time. "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 ballgame to see the umpire." His jurisprudence as Chief Justice, Roberts said, would be characterized by "modesty and humility." After four years on the Court, however, Roberts's record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
One case that Toobin cites in his extended piece, which I would highly recommend reading in full, stuck out to me as embodying Roberts' elitist judicial approach, and the elitist approach of conservatives and Republicans more broadly: Parents Involved in Community Schools v. Seattle School District No. 1. In his opinion for the Supreme Court in the case, Roberts in effect overturned the seminal Brown v. Board of Education decision (or at least the major thrust of it) under the guise of upholding it. Where the Supreme Court led by Chief Justice Earl Warren struck down segregation in America's public schools in Brown, leading to a period of integration, Roberts' narrow majority in the Seattle case barred states from taking even narrow steps towards desegregation. Here's Toobin:
In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Roberts's opinion drew an incredulous dissent from Stevens, who said that the Chief Justice's words reminded him of "Anatole France's observation" that the "majestic equality" of the law forbade "rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." For dozens of years, the Court had drawn a clear distinction between laws that kept black students out of white schools (which were forbidden) and laws that directed black and white students to study together (which were allowed); Roberts's decision sought to eliminate that distinction and, more generally, called into question whether any race-conscious actions by government were still constitutional. "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision," Stevens concluded.
This is what the right's judicial elitism brings: Supreme Court decisions that are almost wholly divorced from reality. Yes, through an act of rhetorical jujitsu one could argue that Seattle upholds rather than overturns Brown -- but at it's heart, it comes to a nearly opposite conclusion, allowing public schools to be more segregated rather than more integrated. At the least, it's extremely difficult to see how this type of convoluted reasoning exemplifies calling balls and strikes rather than shifting the strike zone.
Barack Obama has signaled that he will largely tune out the voices from the elitist right, insisting instead that the next Supreme Court Justice possess a quality he calls "empathy," or understanding of the real world consequences of their actions (a quality that it not always present on the Court today). And while I do not think this means that the President should forgo from consideration the type of jurists the right would like see placed on the Court -- namely those, like Scalia and Roberts, who served on a federal appellate court, preferably in the D.C. Circuit -- he would be well served to strongly consider (as he appears to be doing) those with more diverse legal backgrounds, including in elective office, who have spent their careers trying to understand and reflect the values and hopes of the citizens their decisions will impact.