Washington Lawyer - January/February 2020 - 45

WORTH READING

The Making
of the Roberts Court
Review by Ronald Goldfarb

Courtesy of Basic Books

Roberts came to the Supreme Court in 2005,
originally nominated to replace retiring Justice
O'Connor but confirmed as chief justice when
William Rehnquist died. At age 50, Roberts had
clerked for Rehnquist, worked at the Justice
Department and in a sophisticated appellate
trial practice, and briefly served as a judge on
the U.S. Court of Appeals for the District of
Columbia Circuit. Roberts promised the Senate
that, if confirmed, he'd be "a neutral umpire."
However, he is too smart to believe that declaration, and his Senate confirmers had to know it
was unrealistic. He respects stare decisis, except
when he doesn't, as judges do - that is
judging, not umpiring.

eteran Supreme Court
correspondent and CNN legal
analyst Joan Biskupic, who
wrote biographies of Sandra Day
O'Connor, Antonin Scalia, and
Sonia Sotomayor, has added to
her oeuvre with The Chief: The Life
and Turbulent Times of Chief Justice
John Roberts.

Biskupic's subtitle suggests that Roberts's life
has been "turbulent," but it has been conventional and well crafted, as if his script was
written for, if not by, him. At 13, Roberts applied
for admission to an exclusive, all-white Catholic
boarding school, writing the headmaster that
he wanted "a lot of study and hard work" to
"assure myself of a fine future." He added, "I
want to get the best job by getting the best
education." If Biskupic had been able to add his
later applications to Harvard, the federal government, and his law firm, no doubt they would
have confirmed his youthful presence, demonstrating that he was conventional, competent,
affable, and driven. He was "hardwired" for the
high places where he ultimately ended up.
Although he is only at mid-career, Roberts's
history to date, as related by Biskupic, is revelatory. It demonstrates that his life has exemplified affirmative action for privileged whites in
his era, privileges he benefited from by dint of
his talent and drive.
During Roberts's early years as chief, Associate
Justice Anthony Kennedy was the swing vote
on a predictably partisan Court, the sway vote
in important 5-4 decisions. In reality, it was the
Kennedy Court. But with the addition of two
new justices, conservatives Neil Gorsuch and
Brett Kavanaugh, the Court will now truly

become the Roberts Court. To date, Roberts
has been the balanced, rational, careful, and
prudent umpire, holding together the politicized Court he heads, when he can and
chooses to.
As the U.S. House of Representatives' impeachment of the current president proceeds, with
Roberts presiding over the Senate trial that
must follow, how he conducts those hearings in
a time of fractious politics and raised stakes
regarding institutional issues is likely to define
him and the Roberts Court.
The majority of the Supreme Court is now conservative and likely to be more so as aging
members of the liberal wing are replaced. That
would ensure a conservative jurisprudential
Court for decades. The law is what the justices
say it is, and their rulings are infallible because
they are final (kind of), though not necessarily
correct, to paraphrase two incisive jurisprudential insights.
For this reason, Biskupic's thorough and informative book can't provide more than a midstream picture; the fuller Roberts Court history,
she concedes, inevitably will be written in the
future. Nevertheless, Biskupic knows the man
and the institution, conducting more than 100
interviews for this book, including more than 20
hours of private (mostly off-the-record) conversations with Roberts himself. Some future legal
historian is sure to write the definitive book on
the Roberts Court 25 years from now.
Now that Roberts is 65 and has already been
chief for 15 years, "the court is now Roberts's in
name and reality," concludes Biskupic. Surely, in
name. I believe the reality - whether Roberts
can maintain the Court's independence from
politics, as he says is his aim, while "changing the
Court's role in racial, religious, and other social
dilemmas" - has yet to unfold.
Ronald Goldfarb is an attorney, author, and literary
agent in Washington, D.C. Read more of his work
at www.ronaldgoldfarb.com.

JANUARY/FEBRUARY 2020

WASHINGTON LAWYER 45

http://www.ronaldgoldfarb.com

Washington Lawyer - January/February 2020

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