Roberts Rules (Part 2)
The first query centered on the challenge to Section 5 of the Voting Rights Act, specifically the pre-clearance requirement applied to select southern states and scattered jurisdictions elsewhere. Roberts wrote for the majority, and he allowed the opinion to speak for itself, but did add that history matters as Justices consider legislation dating back 34 years in this case.
The second focused on the results of the November 2008 election. Roberts repeated the oft-used mantra: “elections matter.” He suggested that the Court won’t interfere with the actions of Congress or the President unless they infringe upon the Constitution. Roberts believes strongly in the norm of deference, where the Court is the “passive branch.”
Roberts is a well-known champion of higher pay for federal judges under his administrative responsibilities as Chief Justice, the third questioner asked him to elaborate. While acknowledging that a roomful of teachers was not the best place to make such a case, he argued that the most talented lawyers across the country cannot accept federal judgeships unless they are independently wealthy or in academia. Trial lawyers, on average, make ten times as much money as a federal judge.
The fourth question was highly technical, focusing on specific clauses of the 14th Amendment, the due process and privileges and immunities clauses. The former is widely used, while the latter is locked in hibernation. Roberts pointed to the legal term “substantive due process,” referencing a recent case concerning the right to demand that states consider DNA evidence in criminal cases. Given that there is no long history in this instance, Roberts felt most vulnerable to “undemocratic” actions, and once more prefers deference to legislative bodies, in this case at the state level.
He elaborated by distinguishing between the legal merits of a case and the legal environment. He compared Chief Justice Taney’s 1857 Dred Scott decision, an attempt to resolve the issue of slavery, but a “critical mistake” that precipitated the Civil War, with Chief Justice Warren’s revered Brown v. Board of Education decision in 1954. Roberts often ponders whether the Court is following the path of Taney or Warren.
A question about the Court’s use of law clerks served as an invitation for Roberts to elaborate on the case selection process. The law clerks help screen cases for the Justices they serve. Four justices must vote for consideration of a single case for cert to be granted. Roberts reiterated the point throughout his talk that the Court is not concerned with whether or not cases are correctly decided. Instead, the Justices are concerned with uniformity of federal law.
Roberts himself served as clerk for a man he would eventually replace, then-Associate Justice William Rehnquist. He admitted that the selection process for clerks in arbitrary, and suggested that the clerks serve for only one year in order to avoid permanent staff and to keep the Justices engaged in the Court’s day-to-day matters.
The Chief Justice responded to a question about his jurisprudence with an inquiry of his own: Am I imposing my own policy views, or am I following the law? Unlike most other political positions, the Justices are forced to defend their ultimate decisions in writing for all to examine and evaluate. He held up flag burning as an example. He personally finds the practice “awful,” yet admits that legal prohibitions violate the First Amendment.
He then pivoted to another First Amendment question, this one concerning public employees’ freedom of speech. Roberts referenced the 2006 Garcetti decision that made a distinction between private and public speech. By way of example, an English teacher who was hired to teach Shakespeare cannot pontificate upon the merits of the Iraq War to her students during class time, even though these sentiments are sacred outside of her official duties. Roberts alluded to other First Amendment precedents, including Tinker and Morse, arguing that a basic framework for freedom of speech is in place and then applied to various fact patterns.
Roberts’ final question centered on his role as counsel to then Governor George W. Bush during the recount that followed the 2000 presidential election. The Chief Justice refused to elaborate on grounds of attorney-client privilege, but did reference the Bush v. Gore Supreme Court decision. He suggested that the Florida Supreme Court failed to employ a uniform standard for counting ballots across the state, even upon command from their counterpart in Washington. The 5-4 outcome, according to Roberts, was therefore inevitable.
Chief Justice Roberts ended his talk by acknowledging his 6th Grade history teacher who inspired him to study the subject and pave a path toward leading the highest court in the land. Like educators across the country, the Court rises for the summer, but we’ll continue with our analysis of their work during the 2008-2009 term during the annual Supreme Court Review on August 6. Stay tuned to the Freedom Museum web site for more details.