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The organization man

Law | John Roberts is a product of esteemed institutions, and his attachment to the 'institution' of the Supreme Court may explain his controversial healthcare ruling

Issue: "De-coding Morsi," July 28, 2012

WASHINGTON-In the summer of 2005, when the Senate was considering John Roberts' nomination to the Supreme Court, the Democrats were mainly the ones concerned about his lack of judicial record. Roberts had spent his career lawyering for Republican administrations and at private firms, but his judicial philosophy was a big gray blob.

"We need to know what kind of Supreme Court justice John Roberts would be," insisted Sen. Patrick Leahy, D-Vt., then the top Democrat on the Senate Judiciary Committee. Roberts, in his confirmation hearings, was vague and safe, like most Supreme Court nominees are now post-Robert Bork. He famously compared his job to an umpire calling balls and strikes.

But even then there were clues about the philosophy of the chief justice who would become the key vote upholding President Obama's healthcare law this year. People who knew Roberts throughout his life-at Harvard, in the Washington legal world-noticed his respect for "institutions," and most especially for the court as an institution. Today many of the legal minds parsing Roberts' healthcare decision think he sided with the liberal justices to bolster the court's institutional reputation as minimalist rather than activist.

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"By temperament, he's not a flame-thrower, not somebody you'd expect to willingly or readily overrule a precedent," Paul Mogin, a roommate of Roberts at Harvard Law School for two years, told The New York Times in 2005. "He's somebody who has respect for institutions. I think institutions have been important to him in his life, like Harvard, the Catholic Church and the Supreme Court. He's not likely to be anybody to do anything too radical." And Bill Kayatta, who worked on the Harvard Law Review with Roberts, told the Times, "He had a sort of thoughtful respect for institutions, history, precedent, a willingness to consider change but not revolutionary."

John Yoo, a conservative lawyer at the University of California's Berkeley School of Law, was more blunt to The Washington Post at the same time: "He's the type of person that business conservatives and judicial-restraint conservatives will like but the social conservatives may not like ... he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port."

Upon his nomination to the court in 2005, Roberts noted his "profound appreciation for the role of the court in our constitutional democracy and a deep regard for the court as an institution."

Roberts is the product of what some deem elite institutions. He grew up in Indiana along Lake Michigan, the son of a Bethlehem Steel executive. He attended private Catholic schools, excelled at Latin, and captained his football team in high school. At his all-boy boarding school, he played Peppermint Patty in a production of You're a Good Man, Charlie Brown. He attended Harvard, graduated summa cum laude, and went on to Harvard Law where he helmed the Harvard Law Review.

Out of law school, Roberts quickly leapt to legal prominence, clerking for a circuit court judge and then for Chief Justice William Rehnquist. He was counsel in the upper echelons of the Reagan administration, then left for a private firm, then returned to work in the senior Bush's administration. After President George H.W. Bush lost reelection, Roberts returned to a lucrative practice in a D.C. law firm, where he argued dozens of cases before the Supreme Court. In 2003 President George W. Bush nominated him to the D.C. Circuit Court of Appeals, where he served for two years before Bush nominated him to fill Justice Sandra Day O'Connor's seat on the Supreme Court.

A couple months after Bush nominated Roberts, in the midst of Hurricane Katrina, Rehnquist died. He was 80 years old. Bush elevated Roberts, one of Rehnquist's pallbearers, to the nomination of chief justice. An overwhelming majority of the Senate, including about half the Democrats, confirmed Roberts-though then-Sen. Barack Obama voted against his confirmation. At age 50 Roberts was the youngest chief justice in a century, and he arrived with just two years of experience as a judge, providing very little record of what kind of chief justice he would be.

A prominent figure in the Bush world before he became chief justice, Roberts came under criticism from senior Bush advisers after the healthcare decision. Michael Gerson, an advisor to President George W. Bush, blasted Roberts in a column. Dana Perino, Bush's press secretary, said on Fox News that she talked to President Bush about the healthcare decision but she declined to share the details of their conversation. "Almost across the board, every conservative said he's a solid guy, he's the one we want," she said about the nomination process. "And now the level of disappointment amongst a lot of people, including myself, is really high."


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