When John G. Roberts, Jr., emerges from behind the red curtains and takes his place in the middle of the Supreme Court bench, he usually wears a pair of reading glasses, which he peers over to see the lawyers arguing before him. It’s an old-fashioned look for the Chief Justice of the United States, who is fifty-four, but, even with the glasses, there’s no mistaking that Roberts is the youngest person on the Court. (John Paul Stevens, the senior Associate Justice, who sits to Roberts’s right, is thirty-five years older.) Roberts’s face is unlined, his shoulders are broad and athletic, and only a few wisps of gray hair mark him as changed in any way from the judge who charmed the Senate Judiciary Committee at his confirmation hearing, in 2005.

On April 29th, the last day of arguments for the Court’s current term, the Justices heard Northwest Austin Municipal Utility District No. 1 v. Holder, a critical case about the future of the Voting Rights Act. Congress originally passed the law in 1965, and three years ago overwhelmingly passed its latest reauthorization, rejecting arguments that improvements in race relations had rendered the act unnecessary. Specifically, the bill, signed by President George W. Bush in 2006, kept in place Section 5 of the law, which says that certain jurisdictions, largely in the Old South, have to obtain the approval of the Justice Department before making any changes to their electoral rules, from the location of polling places to the boundaries of congressional districts. A small utility district in Texas challenged that part of the law, making the same argument that members of Congress had just discounted—that this process, known as preclearance, amounted to a form of discrimination against the citizens of the New South.

Roberts said little to the lawyer for the plaintiff, but when Neal K. Katyal, the Deputy Solicitor General, took to the lectern to defend the Voting Rights Act, the Chief Justice pounced. “As I understand it, one-twentieth of one per cent of the submissions are not precleared,” Roberts said. “That, to me, suggests that they are sweeping far more broadly than they need to to address the intentional discrimination under the Fifteenth Amendment”—which guarantees the right to vote regardless of race.

“I disagree with that, Mr. Chief Justice,” Katyal said. “I think what it represents is that Section 5 is actually working very well—that it provides a deterrent.” According to Katyal, the fact that the Justice Department cleared almost all electoral changes proved, in effect, that the South had been trained, if not totally reformed.

Roberts removed his glasses and stared down at Katyal. “That’s like the old elephant whistle,” he said. “You know, ‘I have this whistle to keep away the elephants.’ You know, well, that’s silly. ‘Well, there are no elephants, so it must work.’ ”

Roberts was relentless in challenging Katyal: “So your answer is that Congress can impose this disparate treatment forever because of the history in the South?”

“Absolutely not,” Katyal said.

“When can they—when do they have to stop?”

“Congress here said that twenty-five years was the appropriate reauthorization period.”

“Well, they said five years originally, and then another twenty years,” Roberts said, referring to previous reauthorizations of the act. “I mean, at some point it begins to look like the idea is that this is going to go on forever.”

And this, ultimately, was the source of Roberts’s frustration—and not just in this case. In a series of decisions in the past four years, the Chief Justice has expressed the view that the time has now passed when the Court should allow systemic remedies for racial discrimination. The previous week, the Court heard a challenge by a group of white firefighters in New Haven who were denied promotions even though they had scored better than black applicants on a test. Roberts was, if anything, even more belligerent in questioning the lawyer defending the city. “Now, why is this not intentional discrimination?” he asked. “You are going to have to explain that to me again, because there are particular individuals here,” he said. “And they say they didn’t get their jobs because of intentional racial action by the city.” He added, “You maybe don’t care whether it’s Jones or Smith who is not getting the promotion,” he said. “All you care about is who is getting the promotion. All you care about is his race.”

When Antonin Scalia joined the Court, in 1986, he brought a new gladiatorial spirit to oral arguments, and in subsequent years the Justices have often used their questions as much for campaign speeches as for requests for information. Roberts, though, has taken this practice to an extreme, and now, even more than the effervescent Scalia, it is the Chief Justice, with his slight Midwestern twang, who dominates the Court’s public sessions.

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.

Two days after the argument in the Voting Rights Act case, David H. Souter announced his resignation, giving President Barack Obama his first chance to nominate a Justice to the Court. The first Democratic nominee to the Court in fifteen years will confront what is now, increasingly, John Roberts’s Court. Along with Scalia, Clarence Thomas, Samuel A. Alito, Jr., and (usually) Anthony Kennedy, the majority of the Court is moving right as the rest of the country—or, at least, the rest of the federal government—is moving left. At this low moment in the historical reputation of George W. Bush, his nominee for Chief Justice stands in signal contrast to what appears today to be a failed and fading tenure as President. Roberts’s service on the Court, which is, of course, likely to continue for decades, offers an enduring and faithful reflection of the Bush Presidency.

“You don’t need to sacrifice good grammar in order to talk dirty.” Facebook

Twitter

Email

Shopping

The Justices of the Supreme Court, as a rule, spare themselves unnecessary tedium. Their public hearings are lean and to the point; they hear lawyers’ arguments and, later, announce their decisions. Still, one relic of more leisurely times remains. Several times a month, before the start of the day’s oral arguments, the Justices allow attorneys to be sworn in as members of the Supreme Court bar in person, a process that can take fifteen minutes. (Most lawyers now conduct the swearing-in process by mail.) Rehnquist barely tolerated the practice, rushing through it and mumbling the names, and several colleagues (notably Souter) display an ostentatious boredom that verges on rudeness.

John Roberts, in contrast, welcomes each new lawyer with a smile, and when fathers or mothers put forth their lawyer children for admission—a tradition of sorts at the Court—the Chief makes sure to acknowledge “your son” and “your daughter” on the record. Everyone beams. It’s a small thing, of course, but just one example of Roberts’s appealing behavior in public, much as the nation viewed it during his testimony before the Judiciary Committee. At the time, Senator Dick Durbin, an Illinois Democrat who voted against Roberts’s confirmation, nonetheless observed that he was so ingratiating that he had “retired the trophy” for performance by a judicial nominee. When, early in his tenure, a light bulb exploded in the courtroom in the middle of a hearing, Roberts quipped, “It’s a trick they play on new Chief Justices all the time.” Laughter broke the tension.

Roberts was born in Buffalo on January 27, 1955, and raised in northern Indiana, where his father was an executive with a steel company and his mother a homemaker. (He has three sisters.) Jackie, as he was known, was educated at Catholic schools, and graduated from La Lumiere, at the time an all-boys parochial boarding school in LaPorte. He was the classic well-rounded star student—valedictorian and captain of the football team. He went on to Harvard, majored in history, and graduated in three years, summa cum laude.

At Harvard Law School, Roberts continued to excel, in an even more competitive atmosphere. “He was extremely smart,” said Laurence Tribe, the liberal scholar who taught Roberts constitutional law and grew to know him through his work on the Law Review. “He was really very good at being thoughtful and careful and not particularly conspicuous. He was very lawyerly, even as a law student.” In the mid-seventies, the atmosphere at Harvard still reflected the tumult of the sixties. Roberts stood out as a conservative, though not a notably intense one. “On the Law Review, John was the managing editor, so that meant he gave us our work assignments every day,” Elizabeth Geise, who was a year behind Roberts in law school, said. “He was very honest, straightforward, lot of integrity, fair. He was conservative, and we all knew that. That was unusual in those days. You couldn’t think of a guy who was a straighter arrow.” After graduating magna cum laude, in 1979, Roberts first clerked for Henry J. Friendly, of the federal appeals court in New York, who was legendary for his scholarship and erudition, but was not known as an especially partisan figure.

From New York, Roberts moved to the Supreme Court, where he became a clerk for Associate Justice William H. Rehnquist, and it was in Washington that his political education began. Rehnquist, appointed by Richard Nixon in 1972, was, in his first decade as a Justice, almost a fringe right-wing figure on the Court, which was then dominated by William J. Brennan, Jr. But Ronald Reagan’s election to the Presidency, which took place just a few months into Roberts’s clerkship, lifted Rehnquist to power and, more broadly, gave flight to the conservative legal movement.

At that early stage of the Reagan era, conservatives had a problem, because there were no institutions where like-minded lawyers could be nurtured; the Federalist Society, the conservative legal group, was not founded until 1982. “Roberts got a lot of attention because he clerked for Rehnquist,” said Steven Teles, a professor of political science at Johns Hopkins and the author of “The Rise of the Conservative Legal Movement.” “Without the Federalist Society, there were not a lot of other ways for the Administration to make sure that they were getting true conservatives. The Rehnquist clerkship marked Roberts as someone who could be trusted.”

As a former law clerk to Rehnquist, not to mention his immediate successor as Chief Justice, Roberts was an obvious choice to deliver the annual lecture named for Rehnquist at the University of Arizona law school in February. Roberts is a gifted public speaker—relaxed, often funny, sometimes self-deprecating—and he began his speech with a warm remembrance of his mentor. Like Barack Obama, Roberts can make reading from a prepared text look almost spontaneous. “I first met William Rehnquist more than twenty-eight years ago,” he told the audience in Tucson. “The initial meeting left a strong impression on me. Justice Rehnquist was friendly and unpretentious. He wore scuffed Hush Puppy shoes. That was my first lesson. Clothes do not make the man. The Justice sported long sideburns and Buddy Holly glasses long after they were fashionable. And he wore loud ties that I am confident were never fashionable.”

Before long, though, Roberts steered away from nostalgic reverie and into constitutional controversy. He maintained his relaxed and conversational cadence, but his words reflected a sharply partisan world view. “When Justice Rehnquist came onto the Court, I think it’s fair to say that the practice of constitutional law—how constitutional law was made—was more fluid and wide-ranging than it is today, more in the realm of political science,” Roberts said. “Now, over Justice Rehnquist’s time on the Court, the method of analysis and argument shifted to the more solid grounds of legal arguments—what are the texts of the statutes involved, what precedents control. Rehnquist, a student both of political science and the law, was significantly responsible for that seismic shift.” Rehnquist joined the Court toward the end of its liberal heyday—the era when the Justices expanded civil-rights protections for minorities, established new barriers between church and state, and, most famously, recognized a constitutional right to abortion for women. This period, in Roberts’s telling, was the bad old days.

These sentiments reflect a common view for conservatives like Roberts. “There really was a sense at the time among the lawyers in his Administration that Reagan had a mandate for comprehensive change in the nature of government,” Teles said. “They thought a lot of what the liberals had done in creating, say, affirmative action was simply interest-group politics and not really ‘law’ at all, and it was their job to restore professionalism to the legal profession in government.”

“I heard about John, and I immediately tried to hire him,” Charles Fried, the Harvard law professor who was Reagan’s second Solicitor General, said. Kenneth Starr, who was chief of staff to William French Smith, Reagan’s Attorney General, had hired Roberts as a special assistant to Smith. Roberts then went to work at the White House, as an associate counsel.

All the lawyers who worked for Reagan were, in some general sense, conservative, but there is a difference between those, like Roberts, who came of age during Reagan’s first term in office and those who prospered in his second. “The Department of Justice in the first term was full of serious, principled people,” Teles said. “They didn’t see themselves as part of the Christian right, or even necessarily part of a larger political movement, but they did think of themselves as real lawyers who were reacting to what they thought of as the excesses of liberalism.” They believed, Teles said, “in what they called judicial restraint and strict constructionism. Roberts comes out of this world.” Liberal critics, in turn, regard this view as unduly deferential to the status quo and thus a kind of abdication of the judicial role.

Roberts in high school, where he was valedictorian and football captain. Photograph from La Lumiere School / AP

The legal philosophy of Edwin Meese III, which promoted an “originalist” view of the Constitution, dominated Reagan’s second term. Originalists, whose ranks now include Scalia and Thomas, believe that the Constitution should be interpreted in line with the intentions and beliefs of its framers. “John was not part of the Meese crowd,” one lawyer who worked with Roberts in the Reagan years said. “They cared more about a strict separation of powers, and even some limitations on executive and government power.”