Other Voices

Right-wing backlash causes Roberts to walk lonely road

Chief Justice John Roberts has established himself as a solid advocate of judicial restraint.
Chief Justice John Roberts has established himself as a solid advocate of judicial restraint. AP

The U.S. Supreme Court term that starts the first Monday in October will mark the 10th anniversary of John Roberts’ introduction as chief justice.

He can celebrate by reflecting on the assertion by GOP presidential candidate Ted Cruz that Roberts should never have been nominated.

Cruz’s repudiation of Roberts, a fellow product of the conservative legal establishment, is just the latest confirmation of an astonishing process: The chief justice, a lifelong conservative who hasn’t abandoned his views, is being abandoned by conservatives — without being embraced by liberals.

Having exercised judicial restraint in the two Obamacare cases and in the gay-marriage decision, Roberts is in the admirable and unenviable position of having a principled, across-the-board stand against activism.

It’s admirable because justices are supposed to have a coherent judicial philosophy. And it’s unenviable because, in an era of activism, it wins you nothing but enemies on both sides.

Perhaps suitably for the Supreme Court, there’s a precedent: Justice Felix Frankfurter, who joined the Supreme Court as a prominent liberal and found that his refusal to adopt judicial activism lost him his liberal legacy without gaining him a conservative one.

As a young government lawyer and Harvard law professor, Frankfurter became known for his advocacy of liberal causes.

He supported labor unions, helped found the American Civil Liberties Union, and was a board member of the National Association for the Advancement of Colored People.

He was a close adviser to Franklin Delano Roosevelt, instrumental in shaping the second New Deal. When he became a justice in 1939, he was one of the most famous liberals in the country.

As part of his liberalism, Frankfurter pioneered judicial restraint, which he developed to criticize the libertarian, property-protecting Supreme Court majority that struck down progressive legislation on wages, hours and working conditions.

He marshaled the views of Oliver Wendell Holmes and Louis Brandeis to support his critique, but in truth both of those great justices exercised judicial restraint somewhat selectively.

Frankfurter took seriously the judicial philosophy he’d developed as a critic of the court’s majority. And he stuck with his restraint even when FDR’s numerous Supreme Court appointments (eight plus a chief justice) gave liberals a majority.

The result made Frankfurter look like a conservative on a court that moved steadily to the left.

The parallels to Roberts are striking. He came onto the bench as a highly credentialed conservative who clerked for Justice William Rehnquist and worked in the Reagan administration.

He was deputy solicitor general under President George H.W. Bush before being nominated to the court by President George W. Bush.

By the time Roberts came of age, judicial restraint had become a conservative position in response to judicial activism from the left. As a conservative, Roberts believed in judicial restraint, a principle he invoked at his confirmation hearings.

Once on the court, however, especially after the retirement of Justice Sandra Day O’Connor, Roberts found himself with a conservative majority that would kick into action whenever Justice Anthony Kennedy’s view brought him to a conservative result.

Roberts could’ve pressed his advantage and abandoned judicial restraint, as his conservative colleagues are all prepared to do.

But Roberts has balked at judicial activism in the most high-profile cases the court has faced, bitterly disappointing conservatives like Cruz.

In Roberts’ view, the court lacks the legitimate authority to overturn legislation passed by an empowered democratic majority, and harms itself and the democratic process when it does so.

Having refused to drop his judicial restraint when it’s convenient, Roberts is now being abandoned by his fellow conservatives.

It would be nice to think that history will vindicate Roberts. But it hasn’t vindicated Frankfurter — at least not yet.

Noah Feldman is a Bloomberg View columnist.

nfeldman7@bloomberg.net

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