Jeffrey Toobin of the New Yorker has penned a biased but thought-provoking hit piece on Chief Justice John Roberts.
Toobin’s thesis can be summed up in his article’s subtitle: The Supreme Court’s stealth hard-liner.
Essentially, he argues that behind Roberts’ admitted charm and legal chops lies a hardline conservative, dedicated to serving the interests of the Republican Party.
He also implies that Roberts pulled a bait-and-switch during his Senate confirmation hearings, citing Roberts’ own words and contrasting them with his later actions:
“Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
However, what Toobin’s piece really shows is that hard questions don’t have easy answers. In his attempts to portray Roberts as a stealth hardliner, the overwhelming impression I got was of a justice with a clear and consistent set of principles, albeit ones I might not always agree with. And while Toobin is a good writer (and one of the saner talking heads that CNN trots out for political coverage), he demonstrates how easy it is to become trapped in one’s own political frame of reference.
The core of Toobin’s argument is that Roberts has overturned the past direction of the Supreme Court by focusing on limiting and eliminating affirmative action and other forms of racial discrimination. In ruling against a Seattle school district plan to sort schools by race to provide racial diversity at each school, Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
While I am sympathetic to the argument that certain races, have, on the whole, been discriminated against, I think Roberts is on to something when he argues that it is inconsistent to argue against the repulsive “separate but equal” arguments of the segregation era, yet embrace discrimination against entire groups of people because of their ancestry.
Or in other words, does past government discrimination against a group justify present government discriminiation for a group?
Perhaps I am biased here, because as a member of a “model minority” I have been discriminated against all my life, without any apparent government intervention on my behalf. And while nothing that I have experienced can possibly compare to the horrors of slavery and Jim Crow, my wife and I often reflect that just 50 years ago, nearly all of the states in the Union would have forbidden our interracial marriage.
To me, Roberts is trying to live up to his confirmation statement that judges are like umpires. He is trying to enforce a consistent set of rules for everyone. And that doesn’t include giving certain ballplayers four strikes, simply because of their ethnic identity.
But that doesn’t make Roberts a saint of some kind either. The question of how to make amends for past wrongs is a hard one, without easy answers. Just as it is unfair to take an eye for an eye approach and use racial discrimination to compensate for racial discrimination, it is also unfair to let a wrong go uncorrected.
Both sides of the debate are correct. We do have a moral obligation as a nation to make amends, but we also have a moral obligation to a level playing field.
As I said at the outset, there aren’t any easy answers. The best I can offer is the notion that we may need to seek non-governmental action to correct some of these issues. I have incredible faith in humanity, but little faith in efficient and effective government. Instead, why not fund NGOs that are chartered to help specific groups of people? Surely an institution that focuses on evidence-based methods of improving the performance of underprivileged African-American schoolchildren would have a greater impact than simply admitting deserving but less-qualified applicants to college, who then struggle to keep up with their classmates.
The problem with using the government to solve problems is that it’s essentially a dishonest way of spending other people’s money. At least private equity firms and corporate raiders have the decency to raise their money on the open market and pay desirable returns to their creditors; government interventionists use everyone’s purse to benefit the selected and influential few.
Hard questions don’t have easy answers. For the last word on this subject, I’ll turn to the eloquence President Barack Obama. This is somewhat ironic, since Toobin deliberately sets up Obama and Roberts as mirror images–charming intellectual powerhouses who represent two very different philosophies. Yet what encourages me is the possibility that these two passionate patriots might yet find common ground.
“In this world of competing claims about what is right and what is true, have confidence in the values with which you’ve been raised and educated. Be unafraid to speak your mind when those values are at stake. Hold firm to your faith and allow it to guide you on your journey. Stand as a lighthouse.
But remember too that the ultimate irony of faith is that it necessarily admits doubt. It is the belief in things not seen. It is beyond our capacity as human beings to know with certainty what God has planned for us or what He asks of us, and those of us who believe must trust that His wisdom is greater than our own.
This doubt should not push us away from our faith. But it should humble us. It should temper our passions, and cause us to be wary of self-righteousness. It should compel us to remain open, and curious, and eager to continue the moral and spiritual debate that began for so many of you within the walls of Notre Dame. And within our vast democracy, this doubt should remind us to persuade through reason, through an appeal whenever we can to universal rather than parochial principles, and most of all through an abiding example of good works, charity, kindness, and service that moves hearts and minds.
For if there is one law that we can be most certain of, it is the law that binds people of all faiths and no faith together. It is no coincidence that it exists in Christianity and Judaism; in Islam and Hinduism; in Buddhism and humanism. It is, of course, the Golden Rule – the call to treat one another as we wish to be treated. The call to love. To serve. To do what we can to make a difference in the lives of those with whom we share the same brief moment on this Earth.”