Michael Conklin
In her new book The Chief: The Life and Turbulent Times of Chief Justice John Roberts, Joan Biskupic provides insight into the personal and professional life of the seventeenth Chief Justice. Joan Biskupic, The Chief: The Life and Turbulent Times of Chief Justice John Roberts (2019). The intriguing format of the book does so in a very interesting way—instead of simply reporting significant events in the life of John Roberts, it guides the reader on a chronological journey through Roberts’s life with concurrent landmark Supreme Court cases providing a backdrop along the way. This allows the book to serve as both a biography of John Roberts and a brief historical overview of the Supreme Court from 1955 forward. Those two storylines then coalesce into one when Roberts becomes a member of the Court in 2005.
This format allows the reader to follow the events that form both John Roberts and the modern Supreme Court. Additionally, it exposes readers to interesting trends over time. One example is how the margins for Supreme Court confirmation votes have become noticeably narrower over time: from the 97-0, 98-0, and 99-0 votes for Anthony Kennedy, Antonin Scalia, and Sandra Day O’Connor, respectively, to the 50-48 and 54-45 votes for Brett Kavanaugh and Neil Gorsuch, respectively.
Even more interesting than the changes in the Court is how consistently Roberts has adhered to conservative principles throughout his life. While in high school, a piece he wrote for the school paper warned of the dangers of allowing female classmates into the boys-only school. “I would prefer to discuss Shakespeare’s double entendre and the latus rectum of conic sections without a Blonde giggling and blushing behind me,” he lamented. Id. at 26. While an undergrad at Harvard, he wrote about the symbiotic relationship between business and government: “[G]overnment helping business which helped the country which helped the government.” Id. at 39.
Biskupic does an excellent job describing the significant points of Roberts’s career and often providing insightful behind-the-scenes context. The parallel between Roberts’s “switch” in National Federation of Independent Business v. Sebelius (NFIB v. Sebelius) and the more famous “switch in time that saved nine” by another Roberts, Justice Owen Roberts, is discussed. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012); see W. Coast Hotel Co. v. Parish, 300 U.S. 379 (1937). Given the hindsight of Roberts’s future confirmation hearing, details about how he helped prep Sandra Day O’Connor for her Senate Judiciary Committee hearing was interesting (Roberts advised how best to deflect questions while appearing to answer them). Biskupic at 66. His heated disagreement with Sonia Sotomayor over affirmative action and his strong dissent in Obergefell v. Hodges are also discussed at length. Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Id. at 261, 299-301.
Readers who recall almost breaking under the extreme pressures of law school and the practice of law will be comforted to learn that even someone as capable as John Roberts was a “great consumer of Pepto Bismol” while studying at Harvard. Biskupic at 38. Also, despite arguing 39 cases before the Supreme Court, he was always so nervous that his hands would shake and he had to write down, “Mr. Chief Justice and may it please the Court . . .” just in case he forgot how to begin his opening arguments. Id. at 92, 120-21.
But of course, Roberts is not an average person and he was not an average lawyer. As a testament to his work ethic, after an emergency appendectomy surgery, he “had briefs and cert petitions brought over and was able to continue working on them with only occasional interruptions by doctors and nurses.” Id. at 57.
Biskupic likely put great effort in presenting Roberts and his judicial philosophy in a neutral manner. However, Biskupic is human and has her own opinions on these issues. It is simply impossible to be perfectly neutral when discussing Supreme Court cases and backgrounds to the extent covered in this book. Biskupic may get as close to neutral as possible, but there are still examples where she presents information in a way that shows a slight bias against John Roberts and his conservative judicial philosophy.
In numerous places throughout the book, Biskupic pushes the narrative of a divided Supreme Court under Roberts. She describes, “[T]he Court had delivered more fractious 5-4 rulings than usual. The ideological conflicts among them had spilled out with greater spite.” Id. at 2. Increased spite is a subjective claim that cannot be disproven, but the 5-4 claim is demonstrably false. Since 2000, 36% of Supreme Court cases have been decided unanimously and only 19% have been 5-4. Sarah Turberville & Anthony Marcum, Those 5-4 Decisions on the Supreme Court? 9 to 0 is Far More Common, Wash. Post: PostEverything (June 28, 2018). And there is no trend toward more 5-4 decisions over the same time period. Id. These claims of increased division are a significant part of the book and are used to “undercut” Roberts’s “continued . . . assert[ion] that politics played no role in the Court’s decisions.” Biskupic at 276.
Along these same lines, there is also a prevalent theme present in the book that, since Roberts is a conservative and since conservatives now have a majority on the Court, he is therefore guilty of being political. Biskupic posits that, “[These 5-4 rulings] buttressed the perception that the Court majority was politically motivated and that Roberts was engaged in the partisanship he claimed to abhor.” Id. at 9. First, pointing out that two ideologically different groups split down their ideological lines is rather insignificant and axiomatic. For example, some justices view the Commerce Clause in a limited manner, while other justices view it in a more expansive manner. Therefore, it should be no surprise that when the issue of limits of the Commerce Clause comes before the Court that its members tend to split down their ideological lines. Second, when a court is divided based on ideology, it is dubious to blame that result on just those in the majority. The justices on the other side of the equation are just as responsible for why a unanimous opinion was not reached.
The notion that ideological differences on the Court somehow lead to the natural conclusion that Roberts is politically motivated is made even more puzzling with the book’s coverage of NFIB v. Sebelius. Id. at 221-48. There, Roberts likely changed his mind and voted against his principles, at least in part, because of media pressure about appearing political. Therefore, he engaged in a political move in an effort to appear less political. The irony involved in such a move is never pointed out by Biskupic, which provides for the further irony that, in a book filled with criticism of Roberts’s allegedly political behavior, his most political move is praised.
Biskupic appears to focus more attention on, and give more credence to, criticism of Roberts as compared to praise. In some areas, Biskupic provides matter-of-fact retorts to Roberts’s statements. For example, after explaining Roberts’s position on affirmative action, that the Equal Protection Clause ensures that people will not be singled out based on skin color, Biskupic interjects that while “[t]his reasoning sounded logical enough . . . Roberts’s view was (and is) belied by reality.” Id. at 185.
Interpretations of the Equal Protection Clause and the effects of affirmative action are certainly debatable issues. But to state that Roberts’s view is objectively wrong and then present a one-sided explanation as to why seems inappropriate in a biography.
Other examples of bias are more subtle, such as the word choices used to emphasize certain aspects over others. Roberts is said to have “eviscerate[ed]” a key section of the Voting Rights Act in Shelby County v. Holder. Id. at 269; Shelby Cty. v. Holder, 570 U.S. 529 (2013). Edward Blum, a conservative legal activist that spearheaded the case, is described as having been “trolling” for test cases to challenge the Voting Rights Act. Biskupic at 255. While not factually inaccurate, “trolling” has a negative connotation evocative of drudging up bottom feeders. It is unlikely that Biskupic would refer to the NAACP as “trolling” for plaintiffs in Brown v. Board of Education.
But again, writing in a completely unbiased manner on such politically charged subjects is impossible. It is clear that Biskupic, overall, went to great lengths to present the information neutrally.
The need for a thorough, well-researched biography on Roberts such as what Biskupic offers is even more valuable because of how private Roberts is. Because of this, Biskupic says Roberts was her “toughest subject, start to finish.” Nina Totenberg, In ‘The Chief,’ An Enigmatic, Conservative John Roberts Walks a Political Tightrope, NPR (Mar. 22, 2019). Biskupic’s eight off-the-record interviews with Roberts have been described as fencing matches, with Biskupic on one side trying to get information and Roberts on the other side trying to find out how much she already knew. Id. Those who know Roberts agree. “The notion that John plays his cards close to his vest is a dramatic understatement,” says one long-term colleague. Biskupic at 346. Even his wife admits he is very reserved in conversations. Id.
This book would be a worthwhile read for anyone looking to gain insight into the Supreme Court and its current chief justice. The book lays out the necessary background so that lay readers can easily understand the subjects discussed. Even knowledgeable constitutional law professors will gain new insight based on the information about Roberts’s upbringing, his early career, and the behind-the-scenes views of the most influential cases he has presided over.