← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Chief Justice John Roberts, a Rock, and a Hard Place
00:58:16
How will the chief justice reconcile his conservatism with his institutionalism in a divided court?
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- [00:05]
A
The instincts of John Roberts, who rose in Washington as he served Republican administrations, have always rested with the right wing. But now he's much more in a position to be torn between his ideological instincts and his very real institutional concerns about the third branch and particularly about the Supreme Court.
- [00:35]
B
Hi, and welcome back to Amicus, Slate's podcast about the Supreme Court and the law and the rule of law and the rule of law in the Trump era. I'm Dahlia Lithwick. I cover those things for Slate. And hey, it's 2019 and the government is partially shut down, but the courts remain open, actually, with the exception of the immigration courts, which have already delayed most of their hearings, ironically contributing to the already massive backlog of delayed, delayed immigration cases, which is the thing we're fighting about immigration now. We're seeing cases that are going to be rescheduled in the thousands. New cases will be delayed. 2019, you're a couple days in and your name already is irony. 2019 also opened with Chief Justice John Roberts and his annual New Year's State of the Judiciary report. It always sneaks in with the new year. This year was almost more notable for what it did not say. It certainly did not talk about Donald Trump and it did not explicitly say a lot about the thing it addressed, which was sexual misconduct in the Article 3 courts. Indeed, Chief Justice Roberts, who is determined to keep the court out of the public eye in these roiling and very dramatic months post Brett Kavanaugh, is actually quickly becoming the most interesting member of the high court for what he doesn't say. So we've now seen him in the last few months with a series of votes to bat away big cases, intervening in a sealed secret conflict that's coming out of the Mueller probe. Who is John Roberts? Is he evolving into a centrist? Is he taking on Trump himself in his own twinkly eyed, understated way? How did this balls and strikes guy become the most important, intriguing, understated man in America next to the other intriguing, understated man in America we like to call Bob Mueller? Nobody has watched John Roberts more carefully in recent years than Joan Biskupic. She covers the court for cnn, and her new book, the the Life and Turbulent Times of Chief Justice John Roberts, will come out this March. Joan has been covering the supreme court for over 25 years. She's written seminal biographies of several of the justices. She is a legal analyst fore and one of my dear friends and colleagues at the Supreme Court. Joan, welcome back to Amicus.
- [03:09]
A
Thank you, Dalia.
- [03:10]
B
So, Joan, as I just noted in his State of the Judiciary speech on Monday, the Chief justice quite determinedly addressed and didn't address reports of sexual harassment in the judiciary. This is an issue he raised really forcefully in his speech last year. He seems to be accepting the findings of a working group that he convened to analyze the problem. He says, I agree there's more than one or two isolated incidents. I agree this is not just about law clerks. But then he seems to kind of downplay the larger problem in the judiciary. You reported on this extensively last year, the number of complaints about judges. And in fact, he said some of the worst conduct was, quote, incivility or disrespect. He did ask the working group to stay on task to keep looking at this, but is he, in effect, just telling us all it's time to move on?
- [04:06]
A
You picked up on exactly what I picked up on Dalia. The idea that he minimized the kind of harassment or employee abuse that takes place in the nation's courthouses, using the word incivility or disrespect does tend to minimize what might be going on. So I thought that was notable. I also thought it was notable that he stressed how what happens in the federal judiciary compares favorably to other government and private sector workplaces. But how would we really know? One of the complaints that outsiders on law school campuses and former law clerks made was that no real survey had been taken of the extent of the problem. But the chief stressed that the problem is small compared to other places. So, as I said, one question I would raise right away is how would we know? And then also sort of the minimizing of the abuse. I think the phrase was, indeed, the harassment found was in the form of incivility or disrespect rather than overt sexual harassment. And it reminded me of a couple of the the statements that were made to the joint conduct committees that actually had a hearing in the fall about the judiciary's problem. You know, the students from Yale, as you know, Dalia, had talked about the low rate of reporting and saying, the judiciary and the public can't conclude that the alleged misconduct that we saw in the case of Judge Kaczynski was isolated. And they said to the contrary, the experience of former law clerks suggests a broader pattern of harassment, but we just don't know. And then even taking the professor's point of view, one of the lines that came from Harvard Law Professor John Manning, who's not a flaming liberal or someone who could be accused of trying to just be a complainer in this situation. He expressed concerns on behalf of professors who actually help law students get these coveted clerkships. He expressed concerns that the codes code of Conduct's judicial misconduct omits harassment and other forms of workplace discrimination and that there's an absence of effective processes for addressing workplace misconduct. It's the channels of reporting and the channels of resolution and investigation, I think, that are arguably problematic that the chief did not address.
- [06:46]
B
And it's ironic, right, Joan, because one of the things that I think the working group got shellacked from, both from Republicans and Democrats who responded to the report, was there seems to be this feeling in the ether in the working group that, like, people should just report more. The onus is on folks who aren't reporting. And I think that that clearly can't be the takeaway. That's the problem.
- [07:13]
A
You know, the chief justice also stressed the reporting issue, too. What you just said reminded me of a moment when the Senate Judiciary Committee was hearing from Jim Duff, who's director of the Administrative Office of the US Courts, when he testified about how, you know, they don't know the extent of it. But he kept stressing, you know, just one bad apple is someone who we want, we want to end any kind of pattern. And Senator John Kennedy, a Republican from Louisiana, said, how are we going to solve this problem if you don't want to talk directly about it? And I think there is a reluctance to take on the pervasiveness of any problem in the workplace. And it would be, you know, granted, it would be hard to assess it in a broad scale way, but many of the critics of the judiciary who are part of the system say that that is what is needed. But it goes to the fact that there's an attitude that you can't really challenge, you know, the people. There is a subtle fear of retaliation. Certainly that is not distinct to the judiciary as an employer. But I think it's very real that people in the system, judges and the people who work for judges, are afraid of complaining in any way that would lead to them being retaliated against, frozen out, even subtly not getting plum assignments or opportunities. And that's just part of the ethos of this, this elite guild that is our federal judiciary.
- [08:50]
B
And I guess it's worth noting the paradox because John Roberts has now devoted not one, but two of his State of the Judiciary reports to this issue. So we can't fault him for not centering it as something he's concerned about. It's the second year in a row that he said this is deeply concerning, but there is a way in which one wants to see something beyond just him saying it's deeply concerning. And I think, I mean to give him the benefit of the doubt. He's trying to figure out what that sounds like. But it seems to me that folks who want to see meaningful change are going to walk away A, balking at the word incivility and B, asking John Roberts, what exactly is the plan? Am I over criticizing?
- [09:34]
A
I would agree that it is good that the chief justice is trying to keep an emphasis on this problem. Obviously, it all happened because of the Washington Post's story in December of 2017 about allegations that were being made against Judge KACZYNSKI on the 9th Circuit when former law clerks and other staffers came forward to talk about sexual harassment in his chambers. I cannot imagine that we would be at this point with any report from the chief justice, the first or second, without that incident, even though, as you have written, people knew about complaints about Judge Kaczynski, even if they had not been made through the established reporting channels, which has been kind of my concern is that the established reporting channels get lots and lots of complaints, you know, more than, you know, more than a thousand each year. But they're mainly filed by unhappy litigants rather than people with arguably legitimate complaints against judges and the behavior they endure.
- [10:44]
B
So I want to toggle from that because I think those words, incivility, disrespect, there's a through line here which is that the chief justice in the last few months, and you've written about this a bunch, Joan, is really talking about tone a lot, and he's really trying to take the temperature down on all of the mayhem that's happening post Kavanaugh by talking about we talk to one another. And I think you flagged in a speech he gave right after the Kavanaugh hearings last October that he again pointedly said, this is just not how the judiciary conducts itself. And then he ended those remarks in October, saying, echoing Kavanaugh, who had just been seated, saying, as our newest colleague put it, we do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or interests. And I think that there's this interesting paradox, which is almost at I'm almost at the point when John Roberts talks about tone or civility. I feel like he's hiding something. I feel like it's a way for him to not talk about something that is demonstrably wrong and problematic. And again, I feel like I'm being unfair. I'm for Civility. You're for civility. We're all civil. But it feels like it's part of a cover up. And the more John Roberts talks about the need for Sudoku civility in the judiciary, the more it feels like he's saying, please don't talk about things that are really problematic.
- [12:22]
A
I think we're at a very interesting point with John Roberts as leader of the third branch and questions of how he will manage the conservative majority and what sorts of signals he wants the public to receive, especially in light of two things. One is President Trump's complaint about the judiciary, but the other is the very real fact that this court is divided five, four, along partisan, political, ideological lines. There's no getting around the fact that John Roberts and the other four conservatives were nominated, appointed by Republican presidents, and the four liberals who are mainly in dissent on the big cases now were appointed by Democratic presidents. And he, even before this moment, had put a lot of attention into arguing against the fact that they do not work as Democrats or Republicans. That was something he was saying from almost the moment he was confirmed in 2005. And he's heightened that rhetoric in part because of Donald Trump and his complaints against judges and the fact that he will often tag a judge by naming the president who appointed him when he complained about an Obama judge who had ruled against his new asylum policy. Now, what I think is happening with the chief, especially with Justice Kennedy's retirement, is that he is overseeing a court that is more divided along conservative, liberal lines, and he is trying to counter a public perception of partisanship, of political motivation, motivations and ideology that really is not based so much on law, but on more political inclinations. So I think the kinds of statements that we're hearing from him respond again, in part to what Donald Trump has said, but mainly to send a signal about the court he's overseeing. When he says, we do not have Obama judges or Trump judges, Bush judges or Clinton judges, he's talking about the perception, I believe, of his own 5 to 4 court, not just the way Donald Trump has described this court. And I think that he's been trying to counter this for a while. And, you know, he himself, I think, in some of his recent actions and votes, is trying to send a signal that he cannot be as predictable as he might have been. You know, for years, he had to dance around Anthony Kennedy as this centrist jurist whose vote he needed, whose vote he had to woo, but who also essentially gave the court some cover because Anthony Kennedy, a 1988 Ronald Reagan Republican appointee was not predictably conservative in all cases, especially not on social policy cases. You know, he, he cast a key vote to uphold affirmative action on college campuses. He was the voice of gay rights and of new right to same sex marriage. So he, Justice Kennedy embodied the notion that there is nothing, you can't describe someone as a Republican judge or a Democratic judge. Without Kennedy, the court is much more divided exactly along those lines. And John Roberts is now the median. And he is no centrist conservative with a record of joining the left on closely watched social policy disputes as Kennedy was. And the instincts of John Roberts, who rose in Washington as he served Republican administrations, have always rested with the right wing. But now he's much more in a position to be torn between his ideological instincts that have been built all these years from when he first served as a lawyer in the Ronald Reagan administration and his very real institutional concerns about the third branch and particularly about the Supreme Court.
- [16:43]
B
So you've mentioned two really important things you've said. A, a lot of this is responsive to the fact that for the first time in our lifetimes, we have a five, four Republican appointed Democrat appointed perfectly, you know, ideologically split court. There's nobody in play. That's one thing. And the second thing is that Donald Trump is just, in ways we've never seen from the president, just battering away, not just at, you know, Obama judges, but, you know, at all judges on the ninth Circuit, at any judge who strikes down his travel ban. You know, he, he has attacked the court, not just the Supreme Court, but all Article 3 courts in ways we've never seen. And so we have institutionalist John Roberts sort of stepping into a role where he's going to protect the legitimacy of the court at the expense of his own, you know, political predilections. There's a third factor, which is the Kavanaugh hearings, which really dramatically, I think, polarized the country specifically, probably activated a lot of women. Are you seeing ways in which that third component, the acrimony and the ugliness around the Kavanaugh hearings is also making John Ross Roberts act differently than he might have acted in the months since October?
- [18:07]
A
Yes, I think he has accelerated his public statements about the court being separated from politics. What many people don't remember is right after Neil Gorsuch was confirmed In April of 2017, John Roberts was speaking on a campus Rensselaer Polytechnic up in New York, and didn'tyou know, didn't get a lot of coverage. But he happened to say at that point, he stressed that while the Turmoil related to Justice Scalia's death. The Merrick Garland nomination then went nowhere for a year. And then the final nomination and confirmation of Neil Gorsuch, while that was all going on, he made a point to his audience that the court was acting through that time with just eight members in a nonpartisan way, taking cases one at a time. You know, he wanted. He conveyed that message. It didn't get as much attention as the message you just referred to later In October of 2018, after Brett Kavanaugh's very volatile confirmation, when he stressed about how he picked up a line, in fact, from Brett Kavanaugh, that judges don't align themselves with one side of the aisle or the other, that they are neutral. And that got much more attention. And I think he wanted it to get much more attention because obviously, the Kavanaugh nomination fight was much, much uglier, much more public, much more divisive than the Gorsuch one. But he has always feared, he has said out loud on numerous occasions that he fears that after a heated confirmation battle, that the public can't help but take away the idea that any new justice is going to be driven by politics, just as the confirmation battle was cloaked in polit. So he made that statement in October up at the University of Minnesota, I think because of the Kavanaugh nomination and then I think because of the continued fallout, again from what President Trump has said, but also the battle that he's fighting for his own court's reputation and stature in America. Right away, you know, before Thanksgiving, he made that statement about, you know, there's no such thing as an Obama judge, there's no such thing as a Trump judge or a Bush judge. That was not. Chief Justice John Roberts does not do anything spontaneously. He had gotten a request to speak to the topic of President Trump's derision of judges from the Associated Press, from Mark Sherman, which I thought, you know, that Mark drew something important out of the chief. But it was not a spontaneous statement in my mind. It was a statement that the chief had been weighing for a while. I had been talking to lower court judges who had been hoping that the chief would speak out against the president because of their own concerns about the judiciary's reputation. But I also know that the chief has been for a long time concerned about how people might be regarding the Supreme Court itself and how politicized it's gotten. You know, he's. You think of how he voted in the case of Trump versus Hawaii on the president's Muslim majority ban last June. He was with, he's with the conservatives, five to four to uphold it. And he took pains in that opinion to stress how he had to write it, as if the court was dealing with any president, not this particular president. And the court needed not to minimize the power of the executive branch. Well, the dissenting justices, and especially Justice Sotomayor, who was in public from the bench that morning with her statement, you know, essentially said, you know, give me a break. This was not just any president. This was a president who ran on a campaign that was anti immigrant, that was, that included so much anti Muslim rhetoric. So President Trump cannot be regarded just as any president. It was sort of a get real moment in the courtroom that day.
- [22:18]
B
And she said, trump, Trump, Trump. I mean, the opinion was fascinating for just almost the mantra of, you know, if you're not going to say his name, I am. It raises, Joan, this paradox. And I think, I suspect the generals are having this conversation amongst themselves, which is the thing you're saying about the judiciary, which is when you are trying to protect this institution against somebody who's kind of a nihilist and doesn't care if the institution falls or rises, every time you engage with him directly, you damage the institution. That's, that's the thread that I think a lot of institutionalists like John Roberts are trying, you know, they're trying to walk this line between protecting the institution when Donald Trump goes after all Obama judges or all liberal judges or, you know, anybody who strikes down his travel ban. The reason I think John Roberts has been so quiet until literally, as you say, he finally said something in November. And it was pretty anodymye, as it went. But it's because, as we learned when Ruth Bader Ginsburg punched back during the election, you draw back a bloody stump when you attack Trump directly and you damage the institution, too.
- [23:38]
A
Well, two things on that, Dalia. One is, yes, I think he was worried about provoking the president, you know, who wouldn't be, given what we've observed. So that was one thing in the back of his mind. But just to add some context to this, John Roberts himself, from his early years as a mid-20s lawyer for President Ronald Reagan, has been involved in the screening and vetting of conservative judges himself. He, when he worked for Ronald Reagan and then when he worked for George H.W. bush, vetted individuals for the federal bench and was part of an emphasis that we now associate so much with the Federalist Society. But he was once part of a version of that. So he has always been interested in getting more conservatives on the court and getting people who frankly could be identified as Ronald Reagan judges as opposed to Bill Clinton judges. So it's of a different degree. And I think what bothers him is not the notion that, as I said, he was part of, know, bringing people onto the courts that would hold the ideological persuasion of a president, but the notion that once an individual is in the black robe, he or she is an automatic vote for the President's case. And that is exactly what Donald Trump is constantly, I was going to say connoting, but he's not even, it's not even mere connotations. It's direct statements. You know, just wait until the case gets to the Supreme Court. They'll be with me. You know, when he, when he tweets something like that. I think what, first of all, I think the chief would not want to even own a lot of his own ideological interests in a conservative bench. But what he definitely doesn't want to be part of is the notion that someone who was appointed by a particular president is automatically going to be with that president. And I think that that's certainly what many people probably took from the Brett Kavanaugh hearings, is that he would be President Trump's man on the court. President Trump has certainly suggested to the public that Neil Gorsuch and Brett Kavanaugh will be with him.
- [25:58]
B
So. So that's really important. What you're saying, Joan, what you're saying is we can't just look at this on a sort of left right axis or social conservative or movement conservative versus progressive axis. This is really now becoming, at least in John Roberts mind, a deeply fought conversation about loyalty to the President and who is in the tank for the president. And that the legitimacy of the court isn't just eroded by conservatives vote for guns and against affirmative action, but the laser focus in John Roberts mind is the concern that the court becomes a rubber stamp for Trump. And that that is the issue that's animating some of this pushback is that.
- [26:41]
A
And then what else, Dalia? You know, if I learned anything from dealing with John Roberts over the past three years as I was working on this book and meeting with him and talking to people close to him, is that he has a terrific ability to see out into the future years ahead of what's going to come next. So I think that he's not only worried about exactly what's happening now with President Trump, but I think he's worried about a potential backlash and what happens down the road when the Democrats take control, which inevitably, at some point, they will likely take control. What about this talk of maybe expanding the number of justices on the Supreme Court? You and I might think that is going to go nowhere because I actually have those instincts. I feel like, oh, come on. Really? After all these years, Congress is going to expand the membership of the, the court just so that they can water down, you know, the Trump and conservative influence? You know, I tend to think it might not go anywhere. But that's talk, as you know, people are talking about potentially expanding the number of justices. And I think John Roberts sees that and he sees other potential moves by the opposite side, not by conservatives, but by liberals down the road that could also challenge the Supreme Court's impartiality and role in America. And I think he's trying to head off that kind of thing, too. Seriously, I think that he is not existing only in this moment. He's very good at looking ahead. He was a student of history. As you know, he was a history major at Harvard and at one point thought he would get a PhD in history. But I think he's very shrewd in how he looks to the future and that anything he did in November, in that sense, that statement that he gave to the Associated Press and then extended to all reporters didn't capture his thinking for that moment. It captured his thinking for what would come next.
- [28:45]
B
I'm so glad you said that, Joan, because I think when he said that, an awful lot of folks said this is actually there's a straight line from his balls and strikes stuff at his own hearing. You know, once you put on the black robe, you become this oracular, you know, nonpartisan thing. And that he was extending that when he made his statements about there's no such thing as Trump judges and Obama judges. And I think a lot of progressives balked at it because, sure, it sounds like he's defending the institution, but he's also making a normative argument that is really bad for progressives, which is the judges are magic, and that he's been skating on that balls and strikes things for a long time. An awful lot of the Trump nominees who have gotten through on the lower court courts make similar statement. You know, don't mind what I wrote in this polemical blog post about Hillary Clinton being the devil, because once I put on my black robe, I too, will be magic. And I think that there's a way in which, again, this is the language of, you know, once, once you get on the court, there is no politics that redounds to the benefit of John Roberts and conservative judges as much as, you know, statements that are directly partisan.
- [30:02]
A
And it sounds so good, doesn't it, that, you know, we just call them as, you know, balls and strikes. But there's no strike zone in the Constitution. The Constitution is a very thin, thin document that held so much weight in terms of the interpretation of, you know, more than two centuries. So it's the rules. There are no hard and fast rules that can only be interpreted. If there were, all judges would be ruling the same way. And we, we know they don't. So I remember reading George W. Bush's account of first meeting with John Roberts in July of 2005, when then candidate John Roberts rolled out the idea of the umpire metaphor. And George Bush said he was just so struck by it and it sounded so right. And I remember as a reporter covering his hearings in 2005, that became the lead, it became the headline, talking about the statement that has endured since those confirmation hearings in September of 2005. Because it sounds great, doesn't it, you know, this neutrality idea. But we both know that there are very well intentioned judges across the ideological spectrum who believe that they are fairly assessing the law as it's written in the Constitution or federal, federal statutes, and they come to different, different interpretations. So there, there is no real answer here. And I don't know if there's a real answer in baseball, but there's probably a realer answer in baseball than there is in the law.
- [31:46]
B
There's no crying in baseball. That we do know. I'm going to take a moment now to talk Slate plus membership benefits. Because if you are hearing this, you're listening to the regular version of our show, which is really great. But if you sign up for Slate plus, you can enjoy. The Slate plus version is commercial, free, an uninterrupted amicus just for you. And as a Slate plus member, you will get access to all sorts of bonus segments and extended versions of your favorite Slate shows. It only costs $35 for your first year and you can sign up for free for two weeks to check it out first. And not for nothing, signing up for Slate plus also means you will be supporting this show and all the valuable journalism that we do here at Slate. We know that you value and want our cover and you know how urgent this work is and we need your help to do it. So sign up for Slate plus and help secure Slate's future. To learn more and to begin your free two week trial, go to slate.com amicusplus and now back to our conversation with CNN legal analyst and soon to be John Roberts biographer Joan Biskupic. I want to ask you, you've made this point, and I think you're right that we have two John Roberts. I know this is sort of the heart of the question. You know, we have institutionalist John Ro, and we have lifelong movement conservative John Roberts. You're saying something under that. You're saying there's long game John Roberts and there's near term John Roberts. And we've seen that. Right? We know that he is very adept at doing the small incremental thing that turns into Shelby county, you know, that eventually turns into a big decision. Shelby county, that's the case that gutted effectively a big chunk of the Voting Rights Act. And I think that there's something about this interplay and it's really important because in the last few months you noted that and we should talk about it explicitly. But in the last few months, we've certainly seen John Roberts siding with the court's liberal wing in case after case, you know, saying, I'm gonna bat this away. I'm not taking on these big ticket issues. And in some cases he's had Brett Kavanaugh voting with him. And I wanna talk about it. But I also wanna just add pointedly all these things that you are describing right now. The ways that he is taking the temperature down is that just for six months or a year or two years until we go back onto screensaver, stop watching the court, and then he goes big again.
- [34:23]
A
I think it depends. I think that in certain areas of the law that he will always hew to his conservative instincts. And I think race is one of them. I think your reference to Shelby county is very apt. What he did in the 2009 Northwest Austin case that so laid the groundwork for the 2013 Shelby county case was signature John, Robert John Roberts. Both in terms of laying the groundwork, thinking ahead, trying to figure out how to get from point A to point B. And it was on a topic that is so important to him, him racial remedies. It's been an important topic again since his days in the Reagan administration and probably even before then. But then you take areas of more federalism, executive power, things that I think there will be more play in the joints for him. I think overall what matters to him is how he will be regarded in the end. He said early on in his tenure as chief that you. You're not sure how you're going to be regarded. Will you be regarded as John Marshall or will you be regarded as Roger Taney, and he quipped that he likely would never be regarded as John Marshall, even though he invokes him plenty. But you definitely don't want to be regarded as Roger Taney, the notorious author of the Dred Scott opinion. But I think he's very aware of his legacy over the long haul and I'm giving him credit for wanting to protect the third branch branch in, you know, our democratic system. I think it's very important to him as an institutionalist. And I think we, you know, those sorts of themes were in his Affordable Care act decision when he went with the liberals. And he has not lived down that vote in the mind of conservatives. And that is one model for where he might go in the near and long term future with the court buffeted. So, but I do not think there will be a distinct pattern ideologically. I think he will. I don't think he is predictable on certain cases. I do think he will be nuanced. I think that he'll take each term one at a time, but with his eye to the long game. And again, things like race and religion and probably reproductive rights, he will be more predictable than he would be on some things having to do with executive power and the policies of Donald Trump.
- [37:07]
B
So I think that's the single most important thing that I have noted and I think we're in agreement, is that he's not moving to the left. And anybody who thinks John Roberts is drifting a la, you know, John Paul Stevens or Ella David Souter or even Ella Anthony Kennedy to the left is overstating it. What he is doing is a protecting the reputational interests of the courts and balance plotting a long, long course. I mean, he may be the chief justice for decades and he doesn't have to rush. And then I think what you're saying is he's doing thing number C, which is there are areas that he is passionate about and I agree with you, race is clearly one of them. I suspect reproductive rights. He's not going to defect on those. But on issues where these are not his frontline concerns. And, and I'm mindful of in the second iteration of the Affordable Care case where he essentially said in when he voted with the liberals, like, please don't ask me to carry water for crackpot theories. Right. I'm not going to do every single thing that Obama haters asked me to do. And it seems that that's where the fault line will be, that he will be very, very consistent on the things that matter deeply to him. But on some of this stuff it's just not going to be worth it for him to take a reputational hit, either personally or for the court. And I wonder if that maps on, if I'm correct about that, Joan, does that map on to the cases he has so far brushed away just in the last couple of weeks, you know, he's voted not to allow Trump's Justice Department, you know, to stymie the census citizenship case, to stymie a climate change lawsuit. He does not want to get involved, as you said, in this Planned Parenthood reimbursement case. Does that map onto what we're describing, which is these are just not areas of interest for him?
- [39:14]
A
I think, to an extent, but also I think what he's doing, he's taking small preliminary steps. And I think a good example is the most recent one from right before the holidays, when the Supreme Court court rejected by a 5, 4 vote the Trump administration's effort to enforce the new policy at the southern border, denying asylum to people who crossed between points of entry and entered the country illegally. He was with the liberal justices in this case. Brett Kavanaugh did go with the conservatives, but John Roberts was with the liberal justices to, to endorse the lower court's decision forbidding the policy to take effect because it likely violates federal law. So the Supreme Court's action kept in place a lower court injunction while the litigation on the merits of the policy continues. It was not a vote on the merits. I got so many emails saying, wow, he's definitely, this is the new John Roberts. But I think there it was one of those votes that first of all was notdid not cost him much in terms of his own ideology. First of all, it followed by just about a month, his statement that there are no such things as Obama judges, Clinton judges, Bush judges, Trump judges. And if he had been with the conservatives, I think we all would have said, oh, yeah, really? Look at how you 9 divided exactly according to the presidential parties from whence you came. But he went with the liberals. But I'm telling you that. But it wasn't that momentous because the lower court judge in that case, Judge Jay Beibie, certainly no flaming lib, a tried and true conservative appointed by George W. Bush, who had his own inordinate intention, as you know from many of his own policies when he was in the Bush administration, he himself had rejected the government's attempts to defend the policy as lawful. Jay beiby on the 9th Circuit said said asylum would become the, quote, hollowest of rights if foreigners fleeing to the US for fear of persecution, face these new Trump restrictions, that condition eligibility on where the would be refugee tried to enter the country and on that kind of criteria, criteria that had nothing to do with asylum itself. So what John Roberts was doing, as he joined with the other, with the four liberals of the court was not adopting any kind of radical view. First of all, they weren't even voting on the merits. It was just, does this policy take effect or does it not? It was a stay motion, as you know. And in effect, he was joining an action that just affirmed the fact that as Judge Beibey had noted below, for more than six decades, the Supreme Court had, the United States had accepted refugees fleeing personal danger in their home countries. You know, based on laws, treaties, everything else that had nothing to do with where they entered the country. You know what I mean? So, you know, that is one caution I would read into it to say, again, these are preliminary nuanced actions we're seeing from him. And please do not lose sight of where he voted with the majority and wrote the opinion in Trump v. Hawaii in June to uphold President Trump's policy banning certain people from Muslim majority countries.
- [42:56]
B
Two things you're saying are worth teasing out. The new asylum rules is a really good example of the story John Roberts wants to tell playing out. So we have a district court who stays the original rules and says, look, plainly, the statute does not contemplate what Trump is saying we can now do. Then it bounces up to the Ninth Circuit. Jay Biby, as you say, who's forever gonna be attached to the torture memos. Rock, ribbed Republican, agrees. So that you have judges coming together, despite who appointed them in this case, coming together to strike down something that Trump does and that works. And so for John Roberts to say, hey, the system is working is very in tune with the narrative he's trying to tell. There's another thing that I think you said implicitly, but let's say it explicitly, which is all of these DOJ efforts to leapfrog cases to the Supreme Court and to just say, like, eh, we don't even need to go through anything. Let's just have the court decide it in our favor tells exactly the story that you imputed to Donald Trump, which is, it doesn't matter what the lower courts do because I've got the Supreme Court, they're going to give me what I want. And I think John Roberts hates that story. Right? So all these efforts to before cases have even begun to be litigated, to run to the Supreme Court and say, you know, but my mommy give me what I want. John Roberts hates that story. And so he, in some sense is batting away these cases in the early stages because it's very, very easy and costless way to protect the integrity of the entire Article 3 judiciary. Does that sound right?
- [44:39]
A
That's right. That's right. You know, I think many of the justices talk among themselves about what the Solicitor General is doing right now. And they like tradition, they like systems, they like orderliness, as know from having worked in the third branch. People in the judiciary like hierarchies, they like orderliness, and nobody wants anything disruptive. In addition to when, when John Roberts testified back in 2005 and he invoked his umpire metaphor, he also talked about jolts to the system. They don't want substantive jolts, and they also don't want jolts that, you know, take them out of their. Their usual course of how things operate. And you and I could, we can't even count on two hands anymore. All the emergency requests that have come to the Supreme Court saying we're going to quickly jump over an appeals court or we want some sort of emergency, urgent resolution of this because we need our policy to take effect. The Supreme Court doesn't like that. At least it's signaled so far that it, it doesn't want that. But the signals have not been completely consistent. And what I would say is let's wait to really assess things until we see rulings on the merits and have more data points. You know, many people jumped on some of the early actions of Brett Kavanaugh in the first couple months of his tenure, and I think we just don't know yet. Yet I think we can say, as I have written, is that he's not trying to gather a lot of public attention. He's laying low. He doesn't want to be seen as disrupting the system in any of the ways that I just referred to. But he has not been consistently with the conservatives and he's not been consistently with John Roberts, although it is clear that John Roberts would like him as a partner in this effort to try to lower the temperature and try to make the court appear in the public mind above politics.
- [46:56]
B
So two quick lightning round questions on John Roberts. Other stories that I suspect you got a lot of mail about where people were making definitive statements about John Roberts, and they may have been not a big deal. One is there were 83 complaints about Kavanaugh that were, you know, referred first to the D.C. circuit, and then they went to Roberts, Roberts, and then Roberts spiked them to a Judicial panel. There were a lot of complaints that John Roberts deliberately waited until Brett Kavanaugh was sworn in so that he would not be subject to judicial ethics rules and that he deliberately sent it to a judge that Brett Kavanaugh had had worked to get appointed when Brett Kavanaugh worked in the White House. Is there some sense in, in your view that claims that John Roberts sort of masterminded all this so that Kavanaugh couldn't be tagged for his behavior during the hearings? Is that unfair to John Roberts?
- [47:56]
A
That's a tough question. I don't know. I do think he might have not realized some of the potential for an appearance of conflict of interest with the Chief Judge of the 10th Circuit, you, Judge Timkovich, because he had, you know, obviously gone on the court during George W. Bush's tenure when Brett Kavanaugh was involved in vetting judicial candidates and also because the chief judge happens to be also beyond Donald Trump's list of potential Supreme Court justices. I don't know how much that was even in John Roberts mind as he sent the Kavanaugh complaints there. He obviously would have been aware of the fact that, fact that once Brett Kavanaugh became a justice, he was not covered. He was just simply not covered by the code. We all know that. We knew that. That's what the 1980 law says. The Supreme Court is exempt. And for better or for worse, that has been the law. That is how the judicial conduct committees have interpreted. So this was in many ways an exercise that was destined to come up with no resolution that would be satisfactory to the people who were complaining. But I, I don't know. I, I am not in a position to be able to definitively say that, you know, just exactly what he was thinking in terms of manipulating the system. So I can't help you there. Nope, I don't know anything from.
- [49:36]
B
Help me. Can you help me with the second one, which is again, John Roberts happened to be the justice, the, the, the circuit justice for this mystery, you know, criminal proceedings, the unnamed company, the like secret filing and all the drama that happened right around Christmas. We, we know almost nothing. We only know that it was kept secret and we know that whoever this foreign owned company that is fighting its subpoena and saying that their own domestic law is violated if they have to comply. A whole, you know, hallway in the, in the federal courts building was closed. Drama, drama, drama. It gets referred to John Roberts because he's the Circuit justice, not because John Roberts is, you know, part of some crazy deep state enterprise. Right. So again, this was just John Roberts getting something that comes up from the court below, making a ruling and then referring it to the Supreme Court. That's not a John Roberts thing. That's just geography, right?
- [50:40]
A
Well, yeah, he was the. Exactly right. He's the circuit justice. And I think the reason that his actions on that have been blown out of proportion is because the case itself is so remarkable. It's unprecedented to have a case come to the Supreme Court completely under seal with the potential to be heard in secret. Secret, you know, oral arguments in secret. And of course, they haven't. They. There are many, many steps from that. And in fact, by the time your listeners hear this podcast, there might even be an action that has that from the Supreme Court making it all go away from the Supreme Court. Because as we know, this. This foreign entity, this mysterious, you know, whether it be a country, a company, whatever, that has asked for Supreme Court intervention has not gotten any kind of response yet. All that the chief has done is to call for an immediate response from the government on the arguments which the government had filed on December 28, and then on January 2, the group seeking Supreme Court intervention filed its reply. And what could happen now is exactly what could have happened on the first day is the Supreme Court will say, no lower court judges in this case are correct. You must comply here under penalty of these fines. But what John Roberts did was ask for quick, expedited briefing on it. And that might have been a step that was extra cautious or went farther than some people might have expected, but I don't think it was beyond the realm of possibility. And as I say, it could all be over in a matter of a day or two anyway, at least at this stage. I mean, it's obviously something that's going to keep on going under this Mueller investigation one way or another, but we may never even know who the parties are at this point.
- [52:49]
B
Yeah, I just want to. I want to emphasize. Because we're going to get grumpy mail. Joan and I are not being needlessly mistaken, mysterious. We don't know anything. This is just an unprecedented and extremely weird secret subpoena. And we would tell you if we knew. We just don't know. Before I let you go, Joan, big conference January 4th. The court is going to decide whether basically to have an extremely dramatic second half of the this term. There's all sorts of stuff on the docket. LGBTQ rights, partisan gerrymanders, questions already some Trump administration questions, daca, Transban, there's just stick your hand in the bag. Pick something out and it could blow up. On John Roberts attempts to stay off page A1, what's your guess on what the court is going to do? Are they going to take a couple of these big tickets, get items because they just have to, or are they going to just try to have one quiet, soft, gentle term and then blow stuff up next year?
- [54:02]
A
I think we're beyond the soft, gentle term anymore. Just like you said, there's no crying in baseball. There's no gentle at the Supreme Court anymore. It's just by virtue of who's up there and our times and this divided government. I think that the most likely grant would be in the partisan gerrymander situation, where it's actually an appeal from situations in North Carolina and Maryland, essentially forcing the Justice's hand on whether they're going to weigh into these really politically charged disputes over how legislatures draw their election maps, where voters are packed or cracked or whatever, into these districts that end up, you know, essentially rigging the outcomes by virtue of where people are able to vote and for which kind of candidates in districts throughout a state? I think that they will have to take it up, given the posture that these appeals are coming from North Carolina and Maryland. So that is one to wade into. That is a case. That's the kind of case the chief definitely does not want to to be part of, as we saw in what he wrote in the Wisconsin case of last term, where he said, you know, if we start taking on these disputes substantively, if we rule for, for example, a Democratically controlled legislature, won't the public think that we favor Democrats? And conversely, if we rule for a Republican dominated legislature, won't people see that? I mean, when he said that at oral arguments, he was reveal again the lens through which he is seeing the court in the public eye. And I think that can't help but affect his actions on many cases. But this one nonetheless will be before the justices. And I think the folks challenging these partisan gerrymanders are going to try to make the case that if the court does not intervene and set some standards, they will actually be seen seen as part of the political problem, not exacerbating the political problem.
- [56:20]
B
I feel as though if this podcast had a subtext, it would be John between a rock and a hard place in about 12 different iterations. And I want to just say, Joan, I know you're quite literally writing a first draft of history as it's happening under your feet, trying to understand John Roberts as he is, I think, morphing in front of us in some ways has to be both confounding and fascinating and just I can't tell you how much I appreciate you taking a little time to help us understand. As I said, I think the most intriguing quiet man in America. So we look forward to your book. I can't wait to have you back to talk about it. Joan Biskupic covers the court for cnn. Her book, the the Life and Turbulent Times of Chief Justice John Roberts will come out this march. Joan, thank you so very, very much for being with us today.
- [57:21]
A
Thank you, Dalia. It's always a pleasure to talk about the court.
- [57:31]
B
And that is a RA wrap for this episode of Amicus. Happy 2019. Thank you so very much for listening. If you'd like to get in touch, our email is amicuslate.com and you can find us@facebook.com amicus podcast and I am sorry about my flu like symptoms. Today's show was produced by Sarah Burningham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is managing producer of Slate Podcasts. We will be back with another episode of Amicus in two short weeks.