At his confirmation hearings for chief justice, John G. Roberts Jr. parried skeptics with a metaphor: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical to make sure everybody plays by the rules. But it is a limited role.”
Senators were charmed by that modesty, but his chief justiceship has hardly been a model of restraint.
The Roberts court has aggressively recalibrated the nation’s laws in the areas of race, guns and political speech – three of four cases that form the core of Marcia Coyle’s “The Roberts Court: The Struggle for the Constitution.” No area belies Roberts’ assertions of judicial modesty more clearly than the court’s new approach to guns. The court in District of Columbia vs. Heller held that the Second Amendment protects an individual’s right to bear a weapon rather than hinging that right on its relationship to a militia.
That may have been right as a matter of law, but it certainly was not an act of restraint. It overturned the District of Columbia government, relied on a shaky reading of history and ignored decades of prior court rulings.
Because of that, Heller has been roundly criticized – by conservatives. As federal judge Richard Posner said, “it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.” Posner compared the Heller decision to Roe vs. Wade.
So much for Roberts as umpire.
Coyle is a veteran Supreme Court correspondent, trusted by those who practice there and admired by fellow journalists. “The Roberts Court” is richly analytical and meticulously careful. I
When Roberts came to the court in 2005, he replaced Chief Justice William H. Rehnquist, for whom Roberts clerked, so his appointment did not significantly alter the ideological balance. As Coyle observes, the Roberts court really began with the departure of Sandra Day O’Connor and the arrival of her replacement, Samuel A. Alito Jr. Though both are Republicans, she was a moderate, and Alito is anything but.
The fourth of Coyle’s case studies analyzes the challenge to President Barack Obama’s health care law. Here we see a different Roberts, tacking away from his conservative allies and finding a novel way to uphold the law.
His four conservative colleaguesconcluded that Congress improperly exceeded its authority under the Commerce Clause in approving the law; Roberts agreed but found that the health care mandate, which is enforced by a penalty, was a constitutionally permitted act of taxation. He thus managed to assert new limits on Congress while still upholding the law.
Coyle’s book is even-handed and smart, but there are no stunning revelations, and it’s not really an inside account of the court.
She leaves some unanswered questions. The issue of how Roberts came to break from his conservative colleagues on health care, for instance, has been the subject of furious speculation, and Coyle does not resolve it. She reports the rumors that he initially sided with the conservatives and then changed his mind, causing intense friction among the justices. And though she dismisses the possibility of a long-term rift, she never gets to the bottom of those deliberations or explains what really happened over those weeks.
That’s disappointing but not fatal. Coyle’s shrewd reading of the cases is supplemented by skillful reporting on those who practice before the court. Lawyers candidly discuss strategies and rivalries with Coyle, and, through them and the court’s public deliberations and opinions, the Roberts court comes into focus.
It’s not the modest court that its chief once proposed; to the contrary, it is assertive, relevant and a bit scary – and worthy of this useful book.
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