John G. Roberts: The conservative, yet apolitical and consensus-building Chief Justice

August 28, 2013

John Roberts(Editor’s note: Over the next nine weeks, we’ll be profiling each of the sitting Supreme Court justices currently on the bench.)

Our final Supreme Court justice profile is the most senior, yet one of the youngest justices sitting on the bench today: Chief Justice John G. Roberts, Jr.

He takes his role as Chief Justice seriously: even though he falls on the conservative side of the political spectrum, he tries to avoid politics on the Court, and instead he attempts to build consensus around opinions.  Furthermore, he is guided by respect for tradition and precedent instead of sweeping ideologies.

First, we’ll cover the Chief’s personal history.

John Glover Roberts, Jr. was born on January 27, 1955 in Buffalo, New York, to John Glover “Jack” Roberts, Sr. and Rosemary (née Podrasky) Roberts.

When Roberts was in fourth grade, the family moved to Long Beach, Indiana.  His father helped open the Bethlehem Steel mill in Burns Harbor, a half-hour’s drive away.

Roberts attended private Catholic school – first at Notre Dame Elementary School in Long Beach and then at the all-male La Lumiere boarding school in La Porte, Indiana.

Roberts excelled academically in high school, but he was also remarkably involved in extracurricular activities.

Despite his “mediocre” play, Roberts was captain of his football team.  He also wrestled, sang in the choir, co-edited the student newspaper, served on the student council Executive Committee, and participated in school plays (the school yearbook from 1972, his junior year, shows he played Peppermint Patty in the production of “You’re A Good Man, Charlie Brown”).

After high school, Roberts attended Harvard College, graduating summa cum laude in 1976 in only three years with a major in history.  This interest in history perhaps gives some insight into Roberts’ judicial philosophy of being respectful of historical precedent.

After college, he attended Harvard Law School, where he worked as managing editor of the Harvard Law Review.  His classmates later described him as academically driven, striving for nothing short of perfection.  In regards to his political views, classmates also described Roberts as conservative in “the old-fashioned sense” – that is, a respect for institutions and history.

According to Bill Kayatta, “a lifelong Democrat” who served on the law review with Roberts, “He believed in having some humility about one’s ability to suddenly decree that those who came before you were wrong, but he was not a stick in the mud either.”

Regardless, Roberts did not seem to be politically active in law school, and acquaintances regarded him as being even-tempered and able to connect with individuals of many different backgrounds.

Roberts graduated from Harvard Law magna cum laude in 1979, and his academic performance caught the attention of the prominent Judge Henry Friendly of the Second Circuit Court of Appeals.  Judge Friendly hired Roberts as his law clerk out of law school.

The opinions of Judge Friendly, who was known for his views on judicial restraint, are often cited by Roberts in his own judicial opinions.

After Roberts finished his clerkship with Judge Friendly in 1980, he was hired as a clerk for an even more prominent judge: Supreme Court Justice William Rehnquist, who was also influential in shaping Roberts’ judicial views.

After Roberts finished his clerkship with Rehnquist in 1981, he was hired by the Reagan administration, first as a special assistant to the U.S. Attorney General and then as Associate Counsel to the President.

Roberts entered private practice in 1987, working at D.C. law firm Hogan & Hartson until 1989, when he returned to government service for the first Bush administration in the role of Deputy Solicitor General, in which he argued many cases before the Supreme Court.

President George H.W. Bush nominated Roberts to a seat on the D.C. Circuit Court of Appeals, but since no vote was held on his confirmation, Roberts’ nomination expired at the end of the 102nd Congress.

When President Bill Clinton took over the White House in 1993, Roberts returned to private practice at Hogan & Hartson, heading up the firm’s appellate division which again found Roberts arguing cases before the Supreme Court.

During this stint in private practice, Roberts went to Florida to advise Governor Jeb Bush on the recount of ballots during the 2000 presidential election between Al Gore and Bush’s brother, George W. Bush.

In 2001, President George W. Bush nominated Roberts to the D.C. Circuit Court of Appeals, but the nomination once again languished in the Senate Judiciary Committee and lapsed.

In 2003, however (after the 2002 elections saw Republicans take back the Senate), Bush once again nominated Roberts to the same position; he was confirmed with little opposition.

As a judge on the D.C. Circuit, Roberts’ record was generally conservative, though his approach seemed to be guided not by an ideology of originalism, but rather one of judicial restraint.  In addition, Roberts’ record also suggests that he worked toward building consensus in his appellate opinions.

On July 1, 2005, Justice Sandra Day O’Connor announced her intention to retire from the Supreme Court, effective upon the appointment of a successor.  On July 19, 2005, President Bush nominated Roberts to the Court to fill O’Connor’s vacancy.

CJ John RobertsHowever, on September 2, 2005, while Roberts’s confirmation was still pending, Chief Justice Rehnquist died.  On September 5, Bush withdrew Roberts’s nomination as O’Connor’s successor and announced Roberts’ new nomination to the position of Chief Justice, further requesting that the Senate expedite Roberts’ confirmation hearings so that the Court’s Chief Justice vacancy could be filled before the beginning of the Supreme Court’s next term in October.

Roberts was confirmed by the Senate on September 29, 2005, by a vote of 78 to 22.  He was sworn in the same day.

As Chief Justice, Roberts has largely continued the same trend seen in his days on the D.C. Circuit: consensus-building, yet conservative.

A good example of how the Chief Justice looks for consensus can be found in the fact that, since joining the Court nearly eight years ago, Roberts has never once written a solo dissent – a distinction shared only with Justice Elena Kagan, who has been on the Court for five years fewer than Roberts (though they both share a reputation of being consensus-builders).

On the other hand, the justices that are typically found as lone dissenters are those with distinguishing ideologies that set them apart from their colleagues, such as the justice who holds the current title of most lone dissents, Clarence Thomas.

As stated previously, Roberts is not an originalist or a textualist like Justices Thomas or Scalia.  He further distinguishes himself from the two in his deep respect for tradition and precedent.

Of course, in a conflict between precedent and his own judicial views, precedent doesn’t necessarily come out on top for Roberts.

Case in point: this past term’s Shelby County v. Holder, which struck down a key portion of the Voting Rights Act of 1965.

Roberts wrote the majority opinion in Shelby County, which overturned several other cases upholding the constitutionality of the Voting Rights Act section at issue.

Yet another example of this can be found in 2010’s Citizens United v. FEC, which also overturned several precedential Supreme Court rulings to invalidate corporate campaign spending regulations.

Roberts’ “judicial view” that overrode his respect for precedent in both Shelby County and Citizens United is his belief in limiting the power of the federal government.

It’s important to note, again, that Roberts is not strictly guided by any sort of ideology, and typically approaches each case on an individual basis.  Because of this, he is somewhat difficult to predict, and has been known to surprise Court observers with his votes.

And, perhaps no vote of Roberts has surprised onlookers more than the vote he cast in National Federation of Independent Businesses v. Sebelius, in which he joined with the Court’s four liberals in upholding the constitutionality of Obamacare.

Despite the shock to many of seeing the Supreme Court Chief Justice appointed by Republican President George W. Bush voting to uphold the centerpiece legislation of Democratic President Barack Obama’s first term, Roberts’ majority opinion actually conforms to his judicial philosophy.

First, he wrote separately from the liberals holding that Congress lacked the authority to enact the provision in question – the individual mandate – under the Commerce Clause.  This section comported with his beliefs in limitations of federal powers and in the rights of the states.

Next, he found that the individual mandate was allowable under Congress’ taxing powers.  Considering that courts have rarely found any limitations on Congress’ powers under the Taxing Clause – and that the individual mandate imposed a monetary penalty administered by the Internal Revenue Service through the tax code – ruling otherwise would have been markedly out of line with nearly all of the Supreme Court’s precedent on the issue.

Finally, Roberts’ desire to avoid dragging the Court into a political fight is reflected in his choosing his judicial beliefs over political pressure.

Although Roberts’ vote in NFIB sided with the liberals, he’s still a conservative.  Yet, he is one that generally looks at the issues case by case and tries to build consensus along the way.