The Unreal Judge: How Chief Justice Roberts’s Mind Transcends Reality

John Roberts and his Supreme Court Inject Dangerous Naiveté into Judicial Branch and American Law Because They Are Pollyannas

Published on LinkedIn Pulse November, 2014  

By Brian E. Frydenborg- LinkedIn, Facebook, and Twitter (you can follow me there at @bfry1981November 10, 2014

Originally published here thanks to Patrick M. Andedall

I want to begin this exploration of how dangerous Chief Justice John Roberts and his Supreme Court are by going into a disclaimer: I do not think Roberts or his supporters on the Supreme Court are racist (heck, one of his most consistent supporters, Justice Clarence Thomas, is black). I do not think he is a bad person, or that he is deliberately trying to undermine a half-century of progress for minorities in America. I believe he genuinely believes what he writes in his opinions and that he believes is doing right by America.

That is what makes Roberts, and a Supreme Court able to be led and shaped by him, so terrifying.

I remember watching John Roberts’ confirmation hearings before the Senate Judiciary Committee. On certain levels, Roberts is hard not to like and admire. In every respect, he was gracious and a perfect gentleman. He is a loving family man, is extremely intelligent and well educated, is very eloquent, and is clearly very sharp. He did not strike me as fitting the rabid conservative judicial activist mold into which especially Scalia, but also Thomas and Alito, seem to so easily fit. I felt George W. Bush could have done much worse in terms of his selection for a new Chief Justice. I knew America wasn’t going to get a liberal, let alone a centrist, in this pick by President Bush. Republicans and the White House worked hard to win their elections and Democrats would not be trying to pick a justice who was middle-of-the-road if they were in charge, so it would be stupid, naïve, and pointless in the political climate at the time to have expected Bush to pick a candidate who was not a conservative. In hindsight, I think there are certainly conservatives who could have been better than Roberts, but Bush himself was pretty ideological in many ways. So in some ways, perhaps Roberts is among the best we could have realistically expected from President George W. Bush and the Republican Party in 2005. My memory of this period from nine years ago tells me that even many liberal analysts were impressed with his intellect and decorum.

That a man who is so bright and so well educated could be so childishly naïve about reality, real-world consequences of judicial rulings, and the gap between theory and practice, abstract ideology and actual implementation, was stunning and shocking to me.

Roberts—who was the youngest Chief Justice of the Supreme Court of the United States since the famous John Marshall was appointed in 1801 (meaning Roberts may have an opportunity to shape the Supreme Court, United States legal culture, and America for a longer period of time than any Supreme Court Justice in over two centuries and, arguably, as much as almost any other American in our history)—is naïve, a true Pollyanna, only dangerous. And I remember exactly when I realized this.

It was when I read, in June 2007, an opinion of Parents Involved in Community Schools v. Seattle School District No. 1, authored by Roberts himself. Roberts, along with conservative Justices Scalia, Thomas, Alito, and the swinging pendulum known as Justice Anthony Kennedy, voted 5-4 to significantly limit the use of race as a criterion in public school admissions against liberal Justices Breyer, Stevens, Souter, and Ginsburg. However, there was an interesting aspect of the ruling: Kennedy ruled with the conservatives on Parts I, II, III-A and III-C, but Kennedy disagreed with both the dissent and the majority opinion on Parts III-B and IV, in essence producing a situation where four justice voted one way, four another, and he himself issued a separate opinion, meaning no actual majority decision was made on Parts III-B and IV. Still, those parts of the decision were so awful, in his eyes, that he had to remove himself from them.

So, what did Roberts affirm that pushed Kennedy away in III-B and IV? Seattle argued that its school districts could and should use race as a factor in school assignments to help “reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools;” Jefferson Country maintained that it was in its interest to have its students learn “in a racially integrated environment.” Both districts argued that “educational and broader socialization benefits” would come from using race as a major factor in assigning students to schools.

One must truly wonder, if, in Roberts, we are seeing a textbook example of the myopia, lack of self-awareness, and narrow-mindedness that can result from attending the non-racially-diverse Roman Catholic grade and boarding schools in 1960s and 1970s small-town, rural, overwhelmingly-white Indiana when we see what he will write here, in effect proving Seattle’s and Jefferson County’s points…

Roberts writes the “debate” of the “purported benefits” of diversity in education (is there really still a debate on this in the twenty-first century? You get the sense reading this that perhaps Roberts would like to have weighed in on this “debate…”) is not one that the Court needs to address because the aims of the districts are not narrowly focused in this way, but instead are part of a broader program of “racial balance, pure and simple,” to use his words. And this, well, that is easy to strike down! This begs the questions of why using race overall is not a valid way to obtain diversity, and is not a big part of ensuring diversity ensuring racial balance?? That is not to say that other factors and more nuance would not be better, but he seems to dismiss it outright. He writes “The plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the plans are tailored, in the words of Seattle’s Manager of Enrollment Planning, Technical Support, and Demographics, to “the goal established by the school board of attaining a level of diversity within the schools that approximates the district’s overall demographics.” Roberts (perhaps mockingly?) seems to imply that there must be some sort of universal specific level, and the fact that districts have different requirements implies that the whole concept/approach is rubbish; could not the ideal level be unique to each locale, and determined by its local school board? Is that not what federalism, something Roberts undoubtedly as a conservative holds dear, is at its heart??

Roberts also noted that Seattle’s expert did not “demonstrate in any way” that a school that was half white and half-Asian fulfilled the definition any less than one that included large numbers of African-Americans or Latinos. Can you see that myopia shining through? It’s almost blinding. What is obvious, but not to Roberts, in an America that has a strong, clear, and present legacy of particularly vicious discrimination against African-Americans and a young Latino population that has issues with poverty and English proficiency, is that African-Americans and Latinos are two of the groups of students that are most in need of benefitting from education policies that, in a country where property taxes form a huge portion of the revenue base for funding schools, ensure such groups are not left to the mercy of ghettoized and segregated schools in the face of much more affluent white locales that maintain better schools because they have deeper financial pockets, schools that continue to have their white students outperform poorer black and Hispanic students, thus perpetuating the very inequality these race-based education policies are trying to combat. Chief Justice Roberts should not need to have the expert “demonstrate in any way” that a school filled with whites and Asians, two groups that are not underperforming in comparison to black and Hispanic students, does not fit the same desired end-state as a school with more disadvantaged groups as part of the makeup because it should be obvious.

If you’re already starting to cringe or roll your eyes, it gets worse: “Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved,”” as if by just talking about it above all else, the problem of racism is perpetuated. He even quotes a past ruling that says “[A]n effort to alleviate the effects of societal discrimination is not a compelling interest.” REALLY? Because I thought that was a big part of the point and a pretty damn compelling interest in, well, just about anything…

The desire to discriminate based on race for school placement in order to avoid disadvantaging minority students by congregating them in sub-par schools in sub-par locales is put into action by joining the disadvantages students’ fates together with that of more affluent, less-discriminated-against, and majority-groups’ students, but the myopia escalates when Roberts compares this effort to the segregation of the pre-Brown v. Board of Education (1954) era, as if somehow the intention and aims are even remotely comparable. Roberts concludes his blithely dangerous reasoning by stating “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,”PERIOD, end of sentence, and seeming to wish to add (DUH!) at the end. After I read this, I realized we had a Pollyanna monster in our midst.

Sure, in theory, yes, it’s hard to disagree with Robert’ statement. And in an ideal world, where there have been no serious levels of racial discrimination, institutional or otherwise, in the past, it would be silly to worry to a large degree about the racial composition of a student body, a corporate board, a police force, or even a Supreme Court. Without any past animosity, or without long-accumulated benefits going to certain groups because of discrimination against others, it follows that differences in power, status, wealth, education, and poverty between groups of different races would be non-existent, negligible, or not large enough to be a major source of concern needing a government remedy. This is what makes Roberts so terrifying: he write this decision, and so many others, as if that is the world we live in. He simply fails to see that in a world where some groups have literally profited for generations in a disproportionately high manner from the sweat of other men’s brows, and in which the defining aspect of what side of that situation you were on was the color of your skin, the only way to remedy this is to give the formerly discriminated groups a privileged door of access to the institutions that can most provide for social mobility: schools. It means that extraordinary effort must be taken to extricate minority students from historically underperforming, low-income, and lowly-resourced schools in a country where public schools are paid for with property taxes that fluctuate from neighborhood to neighborhood. It means that students from high-income areas with better schools where minorities were prevented from attending must make room for these minority students on the basis of race, or else the gap between the discriminated racial minority students and the affluent white-majority students in terms of prospects and performance is likely to remain in place or become even worse, perpetuating massive racial inequality, a phenomenon we have seen happens all too easily and consistently in America.

Roberts, myopia in overdrive, sees any discrimination as discrimination. Discriminating against whites in favor of blacks to allow a more diverse school composition—ensuring that more affluent white kids and black kids end up more and more often in the same classroom, with the same teachers and the same resources—in the Chief Justice’s mind is the same as segregationists who want to separate black and white students because the former were a pollutant for the latter. This insane view—that all discrimination is equal, period, completely removes the very real weight of history and reduces everything to an abstract Socratic dialogue, where each individual is born in some magical place free from the bonds of the past, able to make his own way just as easily as next person, no matter what you look like, where you came from, or who your family was; this magical fairy-tale land is the United States of America, except it is not like this, and never was. And thinking about America now as the way it should be, but isn’t, and legislating and issuing judicial rulings on the basis of this thinking, as conservatives in America tend to do, will only make America stay further away from this ideal longer and perpetuate the inequalities that they fail so miserably to address.

Kennedy seems to address this gross myopia directly when he writes that “…our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does. [emphasis added].” Roberts’ blithe unawareness of the reality of the situation compels Kennedy to note

…that parts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,”…is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education… should teach us that the problem before us defies so easy a solution… The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto[societal, as opposed to de jure legal] resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.

Roberts (and Thomas, in an Opinion supporting Roberts, had quoted in a footnote for his Opinion in Part III-B, a famous quote from a judge which said that “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Here, Kennedy very directly points out Roberts’ lack of understanding of reality, noting that while that statement “was most certainly justified in the context” in which it was originally used, “In the real world, it is regrettable to say, it cannot be a universal constitutional principle” [emphasis added]. Kennedy also correctly dismisses Roberts’ claims that states cannot have “compelling interest[s] in avoiding racial isolation” or “to achieve a diverse student body population.” Without Roberts’ (and Thomas’, Alito’s, and Scalia’s) extreme and naïve views on the role government can play in combatting racial injustice, Kennedy would have just been able to concur with them; with these views, even though he agrees with much of substance of the ruling, he felt it necessary to write an entirely separate opinion, so dangerous and unrealistic were these views. And keep in mind, Kennedy is not considered a “liberal” justice in general, and here he even voted with the conservatives to declare Seattle’s and Jefferson County’s method for using race unconstitutional, but even hecannot abide what Roberts has written.

Roberts’ thinking on the Supreme Court would lead the way in the dismantling a key provision of the Voting Rights Act of 1965 in 2013, when he basically wrote in his Opinion that the VRA was so successful, and Jim Crow and Southern racism SUCH a disappeared thing of the past, that the VRA’s requirement that especially Southern states that had enacted Jim Crow and segregation laws be forced to clear anything they did involving voting laws or redistricting with the federal Justice Department—a process known as “pre-clearance”—was no longer necessary and, in fact, was an infringement on the sovereignty of the states that has such a good, established track record (really????), and the only appropriate course was to remedy the injustice being done to the states and allow them to be free from automatic federal supervision in terms of how they treated their minority voters. It seemed not to occur to him that process of pre-clearance itself might be one of the very reasons that the VRA had been so successful, even in recent years. Dissenting, Ginsburg brilliantly said this was “like throwing away your umbrella in a rainstorm because you are not getting wet.” Never mind that the Senate voted unanimously and the House 390-33 in favor of a twenty-five-year reauthorization of the Act, including the pre-clearance provisions, in 2006. Never mind that black voters in the South still face special challenges. Never mind that the Act’s pre-clearance provision was used to stop a number of recent measures that, if enacted, would have disenfranchised minority voters in the South in the 2012 election, or that as soon as the pre-clearance provision was struck down by the Roberts Court, Republican lawmakers in various states introduced legislation that would disproportionately affect minority voters who were previously protected by the VRA in places like Texas and North Carolina. Justice Ginsburg later commented that these moves left her feeling “disillusioned.”

At this point, little Roberts, or other like-minded conservatives, or the Supreme Court, says or does surprises me. I expect them to ignore reality and the real world, opting to think of American problems and laws as though they exist in some sort of ancient philosophy dialogue, not an actual place that is real, with specific history and consequences to consider. That’s why it is so important that a Supreme Court Justice, in the words of President Obama, “…understands that justice isn’t about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people’s lives… I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”

Roberts’ myopia reminds me of a great quote from Cicero, from the last days of the Roman Republic. He coexisted with one of the most stubborn, principled conservatives of Roman history: Cato the Younger. Cicero, like many Romans, grew tired of the man’s impractical, even dangerous idealism: “In spite of his exemplary attitude and total integrity,” wrote Cicero, “he sometimes inflicts damage on the state, for he delivers speeches as if her were in Plato’s republic and not in Romulus’ cesspit” (Letters to Atticus2.1). Plato, a famous ancient Greek philosopher, wrote a book called The Republic, in which he laid out an idealized form of government; Romulus was the traditional founder of the very real-world city of Rome, to which Cicero’s “cesspit” was a reference. Cato’s behavior was a major reason why the Republic fell and gave way to undemocratic Emperors; Roberts’s Cato-like idealism is also proving quite destructive. Under him, already, very real protections against very real strains of discrimination in American history have been undermined or dismantled, including a key part of the Voting Rights Act. Sadly, with such a young Chief Justice, there will be more of this to come.