SCOTUS Biographer Takes On 'Turbulent Times Of Chief Justice John Roberts'

Automatic TRANSCRIPT

This message comes from on points sponsor, indeed, if you're hiring with indeed you can post a job in minutes, set up screener questions then zero in on your shortlist of qualified candidates using an online dashboard get started at indeed dot com slash NPR podcast. From WBU are Boston and NPR. I'm David Folkenflik. And this is on point federal judge John Roberts rose to become chief Justice of the US in two thousand five promising to be an empire, calling balls and strikes. He's remained something of an enigma intensely conservative intensely protective of the court intensely private. He has helped to shape decisions favored by Republicans on abortion on equal pay on voting rights in two thousand twelve hour to the great dismay, many of his fellow Republicans that chief Justice upheld central elements of President Obama's signature accomplishment. The Affordable Care Act the statute here may be upheld as a tax increase on those without health insurance, which is within Congress's power to tax leaving the question. Just who is John Roberts today. His biographer will will be my guest and answer that fundamental question this hour on point that chief Justice and his turbulent times. Join us what is. John Robert Stanford to you. What do you want to know about the chief Justice? You can join us anytime at on point radio dot org or on Twitter and Facebook ad on point radio with me here in studio in New York City is Joan biscuit bec- she's legal analyst at CNN, former editor at large for Legal Affairs at Reuters and previously for many years, the supreme court correspondent for the Washington Post and for USA today. Her new book is called the chief the life and turbulent times of chief Justice John Roberts. This is her fourth count them fourth biography of a sitting supreme court. Just justice. Joan welcome to on point. Thank you, David. So as I said you've done for these what made this different. Why did you want to do this one? I got the idea of it as I was actually researching the others because my earlier subjects all had intriguing demographic backgrounds. You know, the first talion American the first woman, the first Latina, and they they had come up with these intriguing personal stories in here was chief Justice, John Reid. Roberts who seemed to have. No distinct background, and I wanted to probe that I wanted to find out where he came from who is people were and how he maneuvered among the other justices because his control is control was obvious. But the ways in which he control the court inside the court were not apparent and when I started David I just wanted to add it was late two thousand fifteen when I started in earnest it was late two thousand fifteen Justice. Antonin Scalia was still alive and Justice. Anthony Kennedy was in control. So so much so much happened in the time that I was researching this and actually gave it even more relevance today before we drill down on some of the central elements of John Robertson, the court that he now helps to oversee sketch a picture for me, you're a lawyer for the first time admitted to the supreme Court Bar. You get that little green light go up. You're standing in front of electron. You're looking at the court. He is right in the center. What are you seeing who is that in front of you when he is which chair is he and in this moment, he's he arguing before the court was just Roberts is the chief Justice are the lawyer for the first time arguing before the supreme court. Okay. Because the only reason I ask is because in January of nineteen Eighty-nine he stood in front of the chief Justice for the first time when he argued it sounded like he was nervous in sick to his stomach at the time. Exactly. Right. David. But now he sits there. So you're looking up, and I have actually on tours with casual behind the scene times been able to go stand over by it. But in an incredibly informal way. You're you're quite close to the tall. Mahogany bench. And the advocate who is standing there. Ready to present his or her case is looking right at the chief who will say Mr. Folkenflik, you may begin. And there he is. And he for the first part of the argument, usually David, you should know he almost operates more as traffic cop than question. Because his associate Justice colleagues all jump in very vigorously, and he has to try to stop people from interrupting each other. He wants to give the advocate at the lectern a little bit time to finish. So immediately once the QNA begins. The lawyer is not looking at the chief most times, the lawyer is trying to figure out who the heck just asked me that question. I hear something over from this side. Now, I hear something over from the side. And it's quite a rattling experience. No matter who you are. And the first time I understand is just so nerve sweat inducing. And so what are his questions like from the bench different justices of different demeanor 's Justice Thomas famously almost never asked questions. Just sorta my or seems from your account to be very lively. And how she she presenting. What is he like when he ask questions a couple of different motivations? Sometimes he just plainly wants to get information from the lawyer before him other times, he wants to just plant the seeds of his own argument. Another people don't understand that. This is the first time the justices are together on any given case when they actually hear it. So they sometimes are arguing with each other and using the lawyer at the lectern as a bit of a foil. So he sometimes might want to communicate where he's at with it. He sometimes might want to get information. He sometimes might want to play devil's advocate his he's clearly. Very well prepared. He's read everything he's come up with questions. He will often use colorful hypotheticals that get attention. He has a little bit of a women's ical way. Sometimes, but he's also very serious because he's trying to set a tone for the venue. We'll talk over. The course this our little bit about his background in Republican circles legal circles, working at the White House working with Ken Starr, and others although pre impeachment inquiry. But I do wanna get at the central tension that you that sort of in many ways propels your book between the idea of being a true conservative and the idea being protector of of the institution of the court as sort of above partisan taint during his Senate confirmation in two thousand five Roberts was at that time, a federal judge already he made the case he would not be inactive supreme court judge and that he would not be an ideolog. Instead Robert said he would strive to be a neutral arbiter testifying that it was quote, his job to call balls and strikes and not to pitch or bat. Judges are like unpire 's umpires don't make the rules. They apply them the role of an empire. And the 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 unpire. Judges have to have the humility to recognize that they operate. Within a system of precedent shaped by other judges equally striving to live up to the judicial oath. How well has John Roberts is chief Justice in the intervening years lived up to that. Well, it's mixed. And I don't know how much he in his deep deep heart believes that. That's what judging is all about. He knows that. There's no sure strike zone in the constitution. There's judging and judgments in what goes on when a jurist is trying to figure out the meaning of a statute or what the constitution, which is actually a thin, but deeply meaningful document how it should be interpreted that that the slogan had about unpire ZIM, balls and strikes. He had used it in his interview with President George W Bush when he ended up being selected, and I think it's a it's a. It's an ideal. And it's something that very much resonated with the president and resonated with the media and the public when he was before the court, but it it's not that easy. It's not that easy at all. And I think his own record shows that that he he takes into account is chief Justice other factors than just the black and white law before him and often the law isn't black and white and as chief he also has the weight of the institution on him wanna take a call now from Appleton, Wisconsin, a steel go ahead. Your thoughts on John Roberts. I was listening on the radio to the confirmation hearings. And and he he made a comment that the like like, you just said, he he he was the umpire, but he said is the elected officials that that make the laws, and and the laws then the supreme court. And and I I just thought that was pretty interesting that you know, it seems that all the politicians throw everything on the supreme court. So thanks for that steel. What do you make? If that Joan well. That was very intriguing comment and on on point. But also, but also reveals some of the Embiid unity that we have here when federal lawmakers are writing legislation they often by virtue of the messy compromise process of of legislating leave lots of holes and leave ambiguity and it falls to federal judges. And then ultimately, the US supreme court to interpret what that means. And there have been so many times when this court has ruled in a way that members of congress felt was contrary to what they were even trying to do. So there is a lot of play in the joints in terms of statutory interpretation. And then also as I said with the constitution all sorts of ways that federal judges look at the same provisions and differ and just think of these nine justices on the supreme court now, just as Ruth Bader Ginsburg, a liberal Disney. Not read the same text of the the the same words of the constitution in the exact manner that Clarence Thomas might or or for the most part and for the most part the chief to one briefly play something that gets to to this tension as a candidate and his President Donald Trump repeatedly criticizing technically of federal judges appointed by Democrats. Here's what he said last October taking aim at a US district judge who blocked the administration from a denying asylum to immigrants crossing the southern border without legal standing to do. So this was an Obama judge. And I'll tell you what it's not gonna happen like this anymore. Everybody that wants to sue the United States. They filed their case in almost they filed that Kate in the ninth circuit, and it means automatic loss. No matter what you do. No matter. How good you cases. Justice Thomas Roberts said we don't have Obama judges or Trump judges Bush judges or Clinton judges he offered this rebuke, President Trump he said what we have an ex. Ordinary group of dedicated judges doing their level best in thirty seconds. We have about left it. Couldn't you make the argument that President Trump in some ways is dropping the pretense in in a kind of brusque fashioned doing us a bit of a favor. Absolutely. I think what John Roberts wanted to say. Is that judges who are appointed by particular, president are not going to automatically rule for that president but face it anyone appointed by President Obama is going to be different from somebody appointed by President Trump and John Roberts himself once had a hand in judge picking we can come back to that. In a moment. We're talking about the supreme court is chief Justice John Roberts, the jurist and the person with his biographer Joan biskupic, you can join the conversation. What questions do you have about how the supreme court operates under Roberts? What big decisions have caught your eye? I'm David Folkenflik in. This is on point. This message comes from an points sponsor, indeed when it comes to hiring. You don't have time to waste you need help getting to your shortlist of qualified candidates fast with indeed post a job in minutes. Set up screener questions then zero in on qualified candidates. And when you need to hire fast, accelerate your results with sponsored jobs. New users can try for free when you sign up at indeed dot com slash NPR, podcast, terms, conditions, and quality standards apply. Whether it's athlete protests, the Muslim travel ban gun violence, school reform or just the music. That's giving you life right now race is the subtext to so much of the American story and on coats, which we make that subtext text. You can listen to us on NPR one or wherever you get your podcasts. This is on point. I'm David Folkenflik. We're discussing the third, and perhaps least appreciated branch of the government judiciary in particular. We're looking at its apex. The supreme court. You can join our conversation. How your opinions about the court change of the years perhaps due to their opinions? What do you make of the partisan clashes over nominations? Follow us on Twitter. Find us on Facebook and on point radio with me is Joan Bisky pick. She's legal analyst at CNN longtime reporter on the supreme court and author of a new book called the chief the life and turbulent times of chief Justice John Roberts. I want to talk a little bit about roberts's own political belief system and his ideology, and I think one way to do that one of the themes and threads. It seems to me throughout your book is the question of race. It's not clear, and we can talk about this. It's not clear to me. Why it works out this way? He's not does not very expressive about how he arrives at this. But seems as though consistent conservative he says at one point, you know, the best way. Not to discriminate on the basis of race is to not discriminate on the basis of race or something quite close to that during his confirmation hearing in two thousand and five John Roberts was pressed over exp- positions. He had expressed while serving as a lawyer in Ronald Reagan's administration in which at times he had seemingly recommended that. Then attorney general William French Smith take more conservative views on affirmative action related race matters under questioning from the late. Ted Senator Ted Kennedy, the famous democrat from Massachusetts Roberts defended the memos that he had written expressly pushing back against the passage of the nineteen eighty two Voting Rights Act, the articulation of views that you read from. Represented my effort to articulate the views of the administration and the position of the administration for whom I worked for which I worked twenty three years ago. Then in twenty thirteen John Roberts wrote a controversial majority opinion that struck down central elements landmark nineteen sixty five Voting Rights Act that required federal oversight of local rules, meet by state and local governments with a history of racial discrimination in voting for African Americans in her dissent. Associate Justice Ruth Bader Ginsburg argued that Robert's decision significantly set back racial progress in America, great man, who led the March from Selma among Gumby, and they're closed for the passage of the Voting Rights Act for progress even in Alabama. The of the moral universe is long. He said, but it bends toward Justice. If there is a steadfast commitment to see the task through to completion. That commitment has been deserved. By today's decision that, of course, repeater Ginsburg, the notorious Rb quoting MLK, the Reverend Martin Luther King Jumba scoop scoop could you tell me a little bit. And explain John Roberts and race where he comes from on this, and where he's evolved to if at all this has been the most consistent area of the law for him his comments that you just played all those just really encapsulate where we're at. And where the court set back in the Ronald Reagan days, he was following what his bosses wanted. But he subscribed to it. He believed that the Voting Rights Act had been too broadly interpreted that it had to be cabin. And he had the idea as you began to paraphrase paraphrase his exact line is the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. He actually believes that racial remedies such as campus affirmative action and certain provisions of the Voting Rights Act can be debilitating to racial minorities, and that they also go beyond the authority of what judges should do that. If if such measures are going to be taken they needed to be they need to be crafted by elected officials. So he has long held these routes and remember even back in college as I write in the book, he bristled at the liberalism that was that was still lingering in America. Yes, he had such great timing when he graduated and then had these two prestigious judicial clerk ships and was ready to be launched in the real world. Conservatism was starting to ascend in America with a the election of Ronald Reagan. And he said he felt the call and interestingly in the. The Voting Rights Act ruling that you just read from from two thousand thirteen his his view is eight. The broadly interpreted law is not needed anymore. He famously said things have changed in the south the pre-clearance provisions that you refer to that was emplaced to stop any kind of electoral changes before they took effect because they might discriminate. He he believed that that that encroachment on local affairs was not needed and just as Ginsberg who was very upset by his idea of what was happening in America, and his rationale that it was no longer needed. And she said throwing out this pre-clearance measure when it has worked and is continuing to stop discriminatory changes at in election laws is like throwing away your umbrella in a rainstorm because you're not getting wet. Moment book when when when you quote her saying that there was something that I thought was an interesting it speaks sort of Jason to this. I guess in two years ago. John Roberts delivered the commencement address. At his son's ninth grade graduation, and he stressed the need for heart lessons, experienced through, you know, once personal journey from time to time in the years to come. I hope you will be treated unfairly. So that you will come to know the value of Justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time. So that you don't take friends for granted. A wish you bad luck again from time to time. So that you will be conscious of the role of chance in life. John Bisky pick what unfairness what injustice what bad luck has John Roberts experienced in his pass to the supreme court. That's an excellent question. It is triggered by that wonderful commencement that he gave it his his sons, boarding school commencement. I would ask many of his friends associates family members. Exactly that question what didn't work out for John Roberts. Can you think of a moment to pivotal moment? And there were so few, you know, talked to a lot of his pals from his own boarding school back in northern Indiana. What didn't go well for him. Was there anything he was bad at ten? You know, somebody say, well, he wasn't that fast of a runner. You know, if there were small things, and the one thing I would I know it was he has he has had a very fortunate. Good life. And that's that's a wonderful thing. That's that's good. And he has his made he is a very smart determined focused hardworking individual. So he has his taken advantage of the gifts that he has had it's interesting because the only thing left to hold onto his sort of political conviction and intellectual conclusion you talk about race, and it's just a placeholder for bunch of issues. But it's clearly one of the key ones on his mind. You know, he came in your accounting. I think his father was. Steal executive of some sort. He very good life. You lived in a privileged place in Indiana went to prestigious private school. There. Went to Harvard. Went to Harvard law was one of the top editors of the Harvard law review. This is not a bad thing. Like, this is this is good to him. And there's not a hint of anything if we're talking about race to suggest that he's has holds harbors at least in your account any any kind of bigotry of any sort and racial in the question of racial policies designed to redress past and potentially current. Injustice is a total legitimate topic of discussion debate and disagreement. But it's interesting how central visceral it seems his reaction is to some of the proposals some of the policies when he was a student and some of the proposals in front of him, and and and laws in front of him as as a jurist. That's right and another speech that I like to point to as well as the one that he gave it his son's commencement was one that he gave it a commencement in two thousand thirteen back at LA mare, which is the boarding school. The all boy Catholic boarding school that he went to northern Indiana. And he talked about the value of persistence insane. Saying persistence is the key to any success. He said, you might have good looks brains. Great upbringing good fortune. But what you really need is in. Life is persistence, and what I say is that true. Certainly he was lucky enough to have had all those other things. Also, he had a lot going for him. But I think that someone like his colleague Justice Sonia Sotomayor might argue that persistence can't get everybody to the finish line. And certainly can't get everybody to the be first in their class. As as John Roberts was is that other other factors go into the mix? And that's why she has long argued that America has not changed sufficiently to drop attention to racial remedies and presumably some of the. Controversies and episodes, we've seen in votes last year, and in recent years, some of the laws enacted that have been challenged would seem to support the question of saying minimum. This is an open debate. We've got some great calls coming in here at like to take some of them. A Nate is calling from Milwaukee, Wisconsin. What's your question for Joan biscuit, pick about about chief Justice John Roberts? I thank you for having me. I was going to bring up a coming Asian that the quoted almost not dealt with and an ironic possibility reliving to its outcome. Talking about the method of rigging elections involving gerrymandering in the court case is we're basically political party was allowed to not only put elections in its favor, but did a lot of sleazy activities in or to perpetuate that and I'm talking about how trying to hide. Evidence during the court cases. So you can see the depths to the political party would go to to seize power. And now the court is looking at North Carolina Maryland with perhaps the idea that well, if you just do it with each political party having done this thing once area or another if you'll compromise. So the both political parties can rig elections and the idea that somehow would make the court look bad to actually. Choose to involve a go against rigging elections. I think he would it would is kind of an IRA. It's seen from the view of if the court and falls, it's often redistricting isn't that stepping in? And the idea is if you're the court involved in protecting people's rights, you should step into protect your reputation as well as their rights and try to avoid that the need. I appreciate that point. Let me throw that to Jones says she can answer for it. And thanks so much for calling in. Joan skunik whereas John Roberts on that. He's got a case in front of him involving Republican German during and in Maryland, he's got a case in front of involving Democrats at tilting the balance in their favor. Well, let me say first that that caller from Wisconsin knows of what he speaks because the case last year was from Wisconsin where there there was an extreme partisan gerrymander. And what John Roberts said in that case decided last year. As a technical matter. The challengers did not have legal standing to bring the case. But at the core of his opinion was his resistance for the court and federal judges below to even be involved in resolving this. And what he said from the bench during those are oral arguments and he hid hinted at again, this time around in the North Carolina and Maryland cases, was that he is afraid of how the public would perceive judges if they rule for on the one hand Republicans in one case or on the other hand, the Democrats in one case, but as just as Elena Kagan made the point last year in Wisconsin, and again from the bench what happens is the opposing party. No matter how many votes it gets an election is losing out because of how things have been rigged or device. I mean, whatever verb. You wanna use on it with the use of sophisticated computers. These days and data analysis of. How people have voted people can the map makers can decide an election before a single ballot is cast. I'd like to take another call. Now. Caleb is calling from Atlanta Georgia killed go ahead. You're on the air. Hi, david. I just had a question for Joan. I really wanted to know. Is there any way that Justice Roberts? Excuse me. Teach us this Roberts could just be bipartisan. I have really noticed that in a lot of the cases where his side on either side. Really, it's the legal argument that I think is better than him deciding for one side or the other thinks much taking my call and thank you for that Caleb. We also are getting some comments online about that question. He is sort of in the center of the court, but by your depiction, and by certainly what we've read in recent years that that fulcrum has moved significantly to the right can heap present a nonpartisan or or or can he help the court lift up? Above partisan politics. Obviously, the best example of that has to be the Obama, courtesy. Right. And he can and I wanna I wanna make clear to the caller from Atlanta. And to to all your listeners is that there are many factors going on here. And for him in any given case, there may be no political external factors in his mind. It might be exactly how he wants to come down in a more moderate way because he is chief, and he has said that he he likely is voting differently because he is chief Justice than if he isn't was an associate Justice because of the institutional concerns, and the cases that we focus on so far, you know, the the race ones and ObamaCare in the background. Those are ones that lots of lots of cross-currents were were invalid being these cases. But in the run of the mill case up there he's going to try to go narrow he's going to try to get. As many justices on the case as possible, and even even in the ObamaCare case that we will talk about, you know, perhaps there was a part of him that thought when all is said and done that tax taxing power rationale that that hold up. That's it. So I am definitely not excluding that as one of the factors here. And I do think that for all the justices. They they not definitely not all some of the justices can involve evolve in different ways. And right now John Roberts is at a pivotal point. Seems to be a moment in some ways. We don't have a ton of time left before the end of the segment, but seems like there's a ways in which the. Validity of that way of thinking about the court is in jeopardy. People are proposing things ways of changing the court because they're concerned about politicization, some of the democratic president candidates have expressed interest in exploring options to reform the Cote, Pete Buddha. Judge the mayor of south bend Indiana's among the candidates who put forth, the idea of adding three more justices for a total excuse me. Several more justices for a total of fifteen. He spoke with Fox News host Chris Wallace earlier this month. What I think we need to do is some kind of structural reform that makes the court less political. We can't go on like this where every time there's a vacancy there's this apocalyptic ideological battle in just twenty seconds that we have how viable is that politically could that happen? I don't think it's going to happen. It's been one hundred fifty years since congress set the number of justices at nine it's not going to happen. But I think chief Justice John Roberts had some of that in the back of his mind when he wanted to tamp down the politics of not just President Trump. But the public we're discussing the leadership and. Ideology of supreme court Justice John Roberts with his biographer Joan Bisky pick. You can join our conversation with questions. Do you have for for her? I'm David Folkenflik in. This is on point. Planet money tip number seventeen. Sometimes life is exactly like the movies might have thirty seconds. They said D minus. Planet money a podcast about the economy in sometimes about rocket ships. This is on point. I'm NPR media. Correspondent David Folkenflik. We're discussing the supreme court, and it's influential chief Justice John Roberts. You can join the conversation. There've been a bunch of proposed reforms what do you think about the court? Should it be updated for the modern era or lead to uplift to operate as it has follow us on Twitter and on Facebook at on point radio with me here in studio in New York City is Joan Bisky pick? She's currently Leila analyst at CNN longtime chronicler of the ups and downs and vagaries of the supreme court and currently the author of a new book called the chief the life and turbulent times of chief Justice John Roberts, her fourth biography of a supreme court Justice. I want to talk for a moment a little bit about his John Roberts bearing and his health. You talk about how nervous he gets. You talk about how he kind of wanted suppress how he felt at one point. And I think he ends up needing app and me. Me, you know key. You talk about the cold sweat. He seems like the most composed guy in public life. Right. And yet actually it seems like there's a great degree of anxiety and introversion going on with him. And indeed there's also this health issue that you don't really hear about. We know that Justice Sonia Sotomayor is I believe a type one diabetic. But you talk about these seizures that the judge the Justice exceeded the chief Justice suffered, and then you have this sort of little. It's almost like a dependent clause in. There says just just so, you know, folks, when you have two of these you're considered an epileptic, I is the chief Justice epilepsy. Has this affected him any significant way? We'll let me separate the two and let me take the easier part that epilepsy. Because that's I know I don't know a lot about that. I know plenty about the nerves in exile eighty he had to epileptic seizures that have been become public. One was back in the early ninety s when he was actually playing golf and the other was in two thousand seven after he had become chief Justice, and he fell up at his vacation home. And I relied on information from the supreme court for both of those and in terms of to epilepsy. Seizures, you know, meaning you could be vulnerable and have epilepsy that just came from, you know, medical information at the time, I asked people if he had had people close to him whether he had had any subsequent seizures and was told no. No. But it's often very hard to get the true health of Justice. But he he looks good. He sounds good. And in that regard, whatever the true depth of his condition. It seems completely under control. And I I want to make sure you know, that I I don't know a lot in that area that way asking for a textbook definition. He said, I don't know. Yes. Yes. I have no no medical insight beyond what has been made public by the supreme court and other reporting of the time the thing that surprised me that you picked up on initially David was you know, this this nervousness. You know, he always had a bottle of pepped abysmal in hand when he was in college because he was always had a nervous stomach whenever he had to give a public speech. He would get, you know, many times he would get physically ill, and, you know, very close friends of his are revealing this to me and then even into the two thousand. Thousands. When he would stand up before the US supreme court as a as an advocate and representing himself as he really was the gold standard in the eyes of many, including justices. But yet his before he took the lectern his hands would shake almost. Uncontrollably. And some of his lawyer colleagues who I told me about it said, they couldn't believe because they thought this is John Roberts. Right now passable, but I thought that a former colleague of his back in Harvard Law School who was president of the Harvard law review, David LeBron who's now president of Rice University down in Texas head a line that I thought was so apt you said John Roberts is an introvert who has learned to present himself as an extrovert. And I do think there's some truth to that. Because he is you know, he's obviously very reserved of I think he shot by in many ways. But here he has to participate out in the public forum. So I give him a lot of credit for overcoming. What many people would say? Well, I think I'll just spend my time in the library. Do a lot of research rights briefs and call it a day, but he's he's put himself out there. And it seems to not come as naturally to him as it might to others. Presents as an extrovert, but not the exuberance of soda my or the the public -ness of us, a repeater Ginsburg, although Ruth, Bader Ginsburg in person, it can be very shy herself wrinkly, but but on a personal level. But what he does is. He's a fantastic speech giver. He has a wonderful wonderful sense of timing. He would practice practice rehearse rehearse when he ever he argued before the justices. And now when he gives a speech, he he's got the thing down he operates, very well in structured settings. He's not naturally spontaneous. But he has an excellent sense of timing. I'd like to take a call now from a fort Atkinson, Wisconsin carries calling in what questions do you have for Joan? Hi, very interesting program. I I have mixed feelings about citizens United. I'd like to know maybe what his views were on that for the decision. He made in my own opinion. It seems like, you know, now corporations are people too. And we're getting donations like crazy on the phone, and you know, you can't serve anymore without having to give money at the end online. And it's it's I don't know if it's a good thing or a bad thing. I think it's more a bad thing. But I'd like to know what his view was on it. Joan what you handle that for? Yes. He actually assigned the opinion. He was in the majority ready to rule that the first amendment of the constitution requires the regulations that then at the time, we're on corporations and labor unions in terms of their. Their contributions to political campaigns that those should be struck down. And he assigned the the opinion to Anthony Kennedy who had long held the view that these restrictions were unconstitutional. He wrote a concurring opinion. We're back just to bring everyone back to what the caller obviously knows about the two thousand twelve citizens United versus Federal Election Commission ruling two thousand ten I'm sorry. The two thousand ten citizens United vs FCC ruling. And he he not only was fully with the majority assigned the opinion to Kennedy, but he wrote a concurring statement trying to reinforce the idea that this again wasn't a political decision. But this is what the first amendment required. The court has long held that money is a form of speech and John Roberts idea is the more speech, the better that both sides have an equal chance to make their case to the electorate. Let's take a look now at sort of this. Counter narrative for a moment. The question the one thing that people sort of a lot of Democrats liberals pointed to and said, oh my God. He could be the next hope, you know, he could you know, the and it led to him being attacked as something like a re. Reproduction of David Sutera who was a disappointment at conservatives nominated by George H W Bush turning out to be moderate to liberal and insensibility. John Roberts voted to uphold. The what was we call ObamaCare and said that it was constitutional. But he took a shall we say meandering and winding path to get there. And in your book, what you reflect really fully for the first time is not only did he reverse where he came out. But the way in which he did it was sort of surprised everyone involved what happened there? Yes. He he switches votes on two different provisions. So not only did he switch on the individual mandate. Which was the provision is the provision that requires every required everyone to have health insurance. He also switched on the Medicaid expansion provisions. When the justices St. I take a second point. Yes. Okay. So obamacare. You know, officially known as the Affordable Care Act passed by congress in two thousand ten after decades of failed attempts in Washington to control spiralling medical costs and provide Americans with higher quality healthcare was a signature domestic achievement of democratic President Barack Obama. It was challenged in two main ways one is. Conservatives in some business groups said that the insurance mandate violated Congress's power to regulate interstate commerce, and they also said that the expansion of Medicaid bent, benefits, the law required the Medicaid program, which is federal money goes to the states to cover a a range of needy and individuals that that should that more people should be covered. More people near the poverty line should get should get Medicaid benefits. And when they after three very closely watched days of oral arguments, the justices meet in their private conference room. No secretaries clerks anybody are nobody's in there. But the nine at their first meeting they vote five to four against that individual insurance mandate. That's what most people were looking at. And they vote also to uphold the Medicaid expansion which had not been struck down by any of the lower courts. So that seemed predictable but over the course of several weeks and months until we got to late June when the dis-. Decision was announced the chief switched his vote on both. He changed his grounding. He his legal rationale. He never deviated from the his point of view that the Affordable Care Act did violate Congress's interstate commerce power. But he decided that it could be upheld under Congress's power to tax. And what was interesting about that? Is that provision was never put to a vote in their conference. Which is why so many of the conservative justices were so angry about that. But the other thing that I found out was not only that you know, how the chief had gotten to the taxing ground rationale. But at the same time, he then changes his vote on the Medicaid expansion wants that to fall and to liberal Justice who's who are working with him to try to hold uphold as much of the affordable characters possible. They switched their votes to then vote against Medicare. I mean, this was happening in the Senate. You just call it horse-trading, right? This is straight up. Like negoti compromise negotiating they're basically saying, look, we're liberals we kinda want this Medicaid thing where the federal government essentially assume almost all of the cost of expanding people being put on Medicaid, which would give additional millions of people healthcare above the poverty line, just above the poverty line. But they're saying look we're gonna go with you on that that's going to go down. So that you feel like you've got cover and you're gonna stick stick with us on the main thing justices, Steven briar and Elena Kagan are pragmatists, and they wanted to make sure that as much of the Affordable Care Act. Obamacare was upheld as much as possible and right into June the pivotal month for the supreme court's decision. Things were such an so much influx. There were so many tensions from talking to many justices. I found that. And I don't want to reveal how I got this story. So I'm talking about you know, I've talked to a majority of the justices at the time in two thousand twelve and then for this book through the years one in the trench coat in Arlington Virginia parking lot late at night. They said follow the Medicaid now. But what I what I discovered is that they liberal justices was weren't sure that they could count on the chief being with the the liberal side to the end to uphold the Ford -able character, and they were in a warm embrace it. We'll give you this. And that was important that was the cause for a lot of consternation conservative circles Roberts had spent decades building an incredible record of sort of conservative and Republican. I don't want to call it rigidity, but consistency shall we say there are a lot of key votes that he made we referred to Shelby county versus holder 2013 Voting Rights Act. A lot of listeners calling in and saying, you know, he gutted that. It's been hurtful for black and Brown voters in particularly in the south. He was involved in the campaign, finance, which we were asked about which was sort of a largely Republican position he voted. He wrote a decision that overturned a preliminary injunction against the Trump travel ban the ban on Muslims companies country from from a number of nations and overturned it also overturned the president of court Matsu versus the United States one of the most shameful ruling supreme court history from World War Two against a Japanese Americans for internment, but Robertson, essentially allowed President Trump's travel ban to go into effect, and he was one of his most notable descents in two thousand fifteen the supreme court legalized same sex marriage in all fifty states in a full throated dissent. He asserted that decision undermined America's democratic process. And then he he kind of offices lament relegating societal institution that had held people together from the beginning of human culture from the dawn of human history until a few. Years ago for every people known to have populated this planet. Marriage was defined as the union of a man and a woman that is true for the Kalahari bushman and the Han Chinese for the Carthaginians and the Aztecs for any civilization at any time at any place in the world, and certainly for those who wrote and ratified our constitution. But today five lawyers have ordered every state to change its definition of marriage to one that matches a new one that they favored because those lawyers have in their words, new insight and a better informed understanding of liberty to who do we think we are. I have no choice, but to descent. And that was the first time in his career on the supreme court back in two thousand fifteen after basically a decade on the court that Roberts read portions of a descent that he had written from the bench. I want to offer the also for listeners and for you the comments of a former constitutional law professor by the name, Barack Obama. He was a Senator at the time from Illinois at democrat on two thousand five to explain his reasoning why he had decided alternately, although he had some respect for John Roberts to vote against Roberts confirmation. This prim court. He did say that he doesn't like bullies. And as always viewed the law as a way of evening out the playing field between the strong and the weak. I was impressed with that statement because I view the law in much the same way. The problem. I had is that when I examined judge Roberts record and history of public service. It's my personal estimate that he has far more often used his formidable skills on behalf of the strong in opposition to the week Joan biskupic, we only have about thirty seconds late. John Justice left. We've just just Roberts has new reinforcements with justices Gorsuch and capital on the bench. But was then Senator Obama, right? Or was that an unfair characterization of what we've seen in the year since I think it depends on which cases you're going to focus on if you're going to focus on race on religion on same sex marriage. He certainly seems to be in a camp that has a narrow view of what rights the people on the margins have in America. He wants those left to elected officials and not to judges you've been hearing there from the voice of Joan Bisky pick. She's CNN legal analyst. She's also author of the chief. The life and turbulent times of chief Justice John Roberts. So appreciate you came into talk with us today. Thank you, David. You can continue the conversation. Get the on point podcast or website on point radio dot org. Follow us on Twitter and Facebook sign up for a newsletter on the website. Have a good read their our executive producer is Karen Shiffman me, I'm David Folkenflik. Thanks for joining us. This is on point.

Coming up next