By Joseph W. Bellacosa

December 1, 2019



By Joseph W. Bellacosa

Review and Commentary by Joseph W. Bellacosa

At his Senate confirmation hearing for the post of Chief Justice of the United States, John Roberts memorably testified that he would simply “call balls and strikes.” That quip left out that, once confirmed, he would also manage every aspect of the game – under the master playbook of rules – the Constitution.

Joan Biskupic’s fine biography is necessarily an unfinished work, as her subject has now entered a new stage in the center-chair stewardship after 14 years in that role. The book title The Chief is apt, but I quibble with the subtitle: The Life and Turbulent Times of Chief Justice John Roberts. It is a tad melodramatic, as his life and time seem more buttoned-up, than “turbulent.”

The book depicts Roberts’ style as a person, lawyer, and jurist who is intellectually curious and deeply analytical; and it suggests his jut-jawed confidence in handling his vast portfolio of judicial and management responsibilities. He is regarded by all who know him as exceedingly well-prepared, with an obsessive thoroughness to his method. Stories from friends and associates illustrate the diligence with which he approached appellate arguments during his career as a public and private lawyer, and during his brief stint on the District of Columbia Circuit Court.

His style remains coolly affable, with an enigmatic diffidence, as the book shows from descriptions of his friends. These characteristics have carried over to the way he comports himself in his judicial demeanor, with a disciplined style that rarely falters. Yet Biskupic’s thoroughness teases out a couple of rare instances when he shows his all-too-human side, as when he interrupted Justice Stephen Breyer when the Chief sensed some overt “spin” in the questioning of counsel during oral arguments; and with Justice Sonia Sotomayor, due perhaps to awkwardness from their different styles, upbringing, and backgrounds.

He exudes professionalism “to the nines,” as the book demonstrates from his youth, education, and advocacy career as a highly ambitious individual, stretching himself to succeed on an upward track to the highest levels of the legal profession, with rare disappointments. He is not impulsive, though he flashes his own subtle and even sharp sense of humor. He plays his moves close to the vest like a multi-level chess master, according to friends.

John Roberts, as “Chief,” strikes me as the ultimate “Guardian of the Institution.” His most admired predecessor, John Marshall, (he liked to touch the foot of the bronze statue of the Great Chief on the ground floor at the Court before he argued cases) has been dubbed the “Maker” of the Supreme Court, through its overarching review powers. (see John Marshall: “The Man Who Made the Supreme Court” by Richard Brookhiser, an excellent complementary book-end to Biskupic’s biography of Chief Justice Roberts (reviewed in the N.Y.L.J., May 24, 2019, p. 6, col. 4)). Notably, Marshall accomplished that intriguing coup by harvesting powers nowhere explicitly conferred in the words and phrases of the Rulebook Constitution.

Intergovernmental structure is a touchstone for John Roberts. Biskupic’s book broadly sketches and interweaves a narrative of cases and themes that help to identify a jurisprudential principle that defines this Chief Justice’s appreciation of his unique role. The book organizes many subject themes (but not all, see infra) around summarized case stories – a favorite trope of lawyer John Roberts that every case has a story to tell.

Interestingly, I discern that the overall theme is not necessarily “conservatism,” whatever that “ism” is, means, or however it is variously defined. Instead, his bedrock framework emerges that the Founders’ genius for the governance of this nation is the distribution of authority under a system of counter-balanced checks and balances. Roberts, like Marshall before him, sensed that the calibration, above all, must be sensitively preserved. The taut tension among the tripartite and interlocking governance structure is something that is explicitly organized in the Constitution by Articles I, II, and III. The third pillar, thought of as the “weakest,” was ingeniously embedded and animated, case by building block case, by Chief Justice Marshall’s judicial work during the foundational decades of the nation’s history.

The “first real Chief,” (though technically the fourth) and the present Chief Justice thus seem to share a common view of the Institution entrusted to their charge, to wit: the only practically available Guardian of the nation’s values, as deposited in the ultimate Umpire’s Rule Book – the Constitution.

In this regard, a highlighted feature that Biskupic does a very good job of laying out is an articulation of some confirmed facts, speculations and inferences as to how the belatedly switched vote and pivotal role of the Chief Justice evolved in the ACA Health Care Act case (The NFIB case in 2012). It became a bete noire for which the Chief was loudly applauded and bitterly criticized at the same time – once the shock of the surprise twist of the bottom-line decision was absorbed. This biographer quotes a pithy appraisal from former Solicitor General, Harvard Professor Charles Fried, to the effect that to reach the institutional right result in the appeal, Roberts “was willing to pay the price in the esteem of those with whom he was closest in political, doctrinal and temperamental agreement.” At the end of the day of the deliberative decisional process, he was willing to sacrifice that comfort zone for a higher value – the Institution – but he did so, some argue, by casting an un-Solomonic vote in that he actually split the decisional baby.

A key feature of his bifurcated vote seems not well-appreciated (though my view is not entirely original, just enhanced) due to a blindness in political and ideological disputation that is not part of this commentary. The huge national health policy initiative was the product of a very complicated process, albeit bitter and partisan. But it was, in the end, an enactment into law by the duly elected Congress and was approved by the President. However elementary that proposition may sound, and despite Marbury’s awesome review power over legislation, there is something humbly magisterial in the Supreme Court’s preservation of respect for that Constitutional distribution of the unique law-making authority under Article I. That feature, I believe, weighed heavily and definitively into the Chief Justice’s institutional calibration in casting his final vote.

To be sure, this Chief Justice has shown an overall consistent “conservative” bent in many subsets of the jurisprudence of the Court. The biographer unfolds how that is consistent with who he is and how he and his career have evolved to date. But that tendency does not totally define him, nor does it diminish the “Chief Institutionalist” role and attitude he displays with regard to the overarching structural governmental principle of distribution of power among the branches, as described above. From that singular perch, the Chief Justice rises above the label of “conservative.” There, he can breathe a bit freer in hopes that he can lead and well-serve the Institution, fulfilling his unique role with intellectual integrity and a clarity of higher purpose.

To be sure, the book forthrightly exposes some of the inevitable tension within him, reflected in his various critical votes in contentious and controversial policy subject areas and appeals. The book lays out the examples: political financing – Citizens United; affirmative action cases; gerrymandering cases; Voting Rights Act cases; religion, and gender equality cases; the ever-contentious abortion issues; union power and dues cases; habeas corpus and terrorist challenges, including the highly controversial one during his brief tenure on the District of Columbia Circuit Court while he was under active consideration for Supreme Court vacancies of Justice O’Connor and, suddenly, Chief Justice Rehnquist. The list covers a lot of territory and the more detailed and critical analysis is left for work from others when the record is complete at some uncertain future date with fresh historical perspective.

Chief Justice Roberts’ most recent decisive fifth vote at the end of this past term may help to pinpoint the duality under which he serves as Chief with only one unweighted vote. The citizenship questionnaire case could not be referenced in the book because it was published before the Census questionnaire case reached the Court. The deft ruling as to whether to allow a citizenship question on the 2020 Questionnaire constituted a judicial issue that was ripe was left for another day. Prudentially, the disposition to remand and thus sidestep this sticky-wicket at this time concerning the legitimacy of that Executive Branch action was brilliant and supportable. Avoiding the necessity of resolving the delicate balance under the distribution of authority among the three branches in this contest at this time comes off as a judicious chess move – something that Chief Justice Marshall might have applauded, as he occasionally operated with avoidance techniques; indeed, Marshall used it in his ingenious Marbury vs Madison disposition.

Chief Justice Roberts also surely knows how to bide his time in the larger public arena. Consider how he held his fire for a propitious moment to deliver some push-back, using his rarely used bully-perch against the President’s attacks on judges and the judicial process. The Chief Justice protectively rebutted the President’s unwise and unfair trash talk implications of political partisanship in the administration of the neutral judicial process of the Institutional Branch.

Biskupic’s book offers another intriguing early-career insight about the Chief, emanating out of his first victory at the Supreme Court as a private lawyer in U.S. v. Halper. The win provoked an early manifestation of an innate skepticism concerning governmental overreach. During his formative year as a law clerk to then-Chief Justice Rehnquist, Roberts wrote to his first judicial mentor, Judge Henry Friendly, back in New York, that he was sensing a growing cynicism about the workings of Washington D.C.

Promptly after that Halper victory, Roberts expressed that lingering concern again with respect to the Government’s tactic of adding a civil penalty against his client that was disproportionate to and had no legal correlation to an underlying criminal offense. The ruling was unanimous in an opinion by Justice Blackmun and, according to Biskupic’s research, Roberts was – not surprisingly – quite pleased with his lawyerly success, adding a postscript hint about his formative skepticism by replying to the Washington Times that “the ruling would force prosecutors to alter their strategy” about such tactics in the future.

That early unease may be stirring anew, decades later, in a fresh prosecutorial phenomenon. The legislative delegation of specific authority to investigate, prosecute, and punish criminal conduct must emanate from Congress, within the oversight of the Big Rule Book – the Constitution, overseen by the Chief Umpire. Prosecutorial authority is not a depository carrying with it a discretionary prerogative for amplifying the arsenal by the interpretive method. Their portfolios do not enjoy some Chevron-like special judicial deference of hands-off – a doctrine in its own administrative regulatory sphere that is currently under fresh scrutiny (see, Kisor v. Wilkie decided June 26, 2019 and Gundy opinions, decided June 20, 2019 at end of last Term of the Supreme Court).

Biskupic’s biography, surprisingly, does not cover or allude to the 2016 case U.S. v. McDonnell that is illustrative of this revitalized concern. To be sure, the book does not purport to be a comprehensive study of the Chief’s entire judicial work thus far, nor a casebook. But, McDonnell hints at something bigger within the Chief’s longtime range of concerns. Indeed, another more recent addition may be percolating, too, in the recent grant of certiorari in Kelly v. U.S. (the New Jersey G.W. Bridge-gate case). The generic subject seems to fall neatly within the purview of the Judicial Branch to scrutinize Executive Branch entities within the framework of real cases and controversies, concerning prescribed – and limited – authority that is duly and specifically delegated by the Legislative Branch.

McDonnell is remarkably a unanimous determination authored by the Chief Justice, without a single extra word or line of concurrence. (Mirabile Non Dictu!) It has the feel and tone of Chief Justice John Marshall’s commanding voice. The case put a firm foot down against overzealous criminalization of political activities that had not been “specifically” (a key word permeating the rationale of the opinion) declared criminal by Congress. Eager prosecutors were found to have ventured beyond their assigned portfolio concerning “tawdry” political activities of the Governor of Virginia and his wife. The word “distasteful” was also used – (many more vivid synonyms spring to mind, but I borrow descriptive ones from the opinion itself). The Virginia Governor ultimately ducked a scarlet “C” of criminality.

The McDonnell case lays out substantive building blocks to its foundational rationale: (a) the theoretical underpinning of due process – federalism concerns that go the heart of the Institutional primacy that is the overriding theme of this commentary; and (b) a jurisprudential realism about prosecutorial overreach that is concerning in that it might inhibit and chill legitimate political activities that are part and parcel of the nation’s history and ordinary course of civic affairs and conduct – unless and until Congress expressly forbids them with specificity, not through interpretive long legs of prosecutorial agendas and media encouragement.

The legal headline and lead are simple: it takes Congress to authorize the use of the awesome power to prosecute specifically defined crimes. There can be no end run, open sesame or ultra vires means to an end. The laws must be executed as they are specifically enacted, not as some might like them to be enforced by their own lights and agendas.

The Holmesian School of experiential jurisprudence may help to understand this approach – a judicial scrutiny not with theoretical heads stuck up in the clouds, but rather with feet firmly planted on terra firma. The Chief Justice’s rationale forthrightly showed this refreshing awareness with a cognizance of real-politique, worthy of Henry Kissinger.

Make no mistake, a number of important caveats and reservations about legitimate prosecutions of specifically defined criminal activities are also expressed, whether they fall into the political arena or any other realm of life’s courses of actions. The opinion is not a blanket immunity for criminal conduct; rather, it is a string of straight lines in the dirt showing the players where to stay within the base lines, or the umpires will call some outs – a notch and order of remedy higher than just balls and strikes.

In sum, it should also come as no surprise that Chief Justice Roberts, a diligent student of history, is likely aware of the wise voice of then-Attorney General Robert Jackson when he exhorted all prosecutors to abide by a gold-standard of conduct:

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility. (“The Federal Prosecutor”, address to the Nation’s U S Attorneys in 1940 (emphasis added); (Jackson, interestingly, was recently identified in a Wall St Journal story as “The Patron Saint of the Rule of Law,” Wall St. J., July 13, 2019)):

In ensuing decades, the entreaty from Jackson to prosecutors to listen to their better angels may sound old-fashioned. My bet, however, is that the current Chief Justice is well aware of its staying power and modern relevance. (A small biographical footnote is that Roberts clerked for Justice Rehnquist who, of course, clerked for Justice Jackson. Thus, I am confident that Justice Jackson’s legendary contributions to this nation’s jurisprudence and governance, and the standards of integrity, decency and excellence he espoused, would have been part and parcel of his in-Chambers inculturation that lasts a lifetime).

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