A Roberts Moment

Well, Alan Dershowitz has had his prediction. He's probably right on most counts about Roberts as Chief Justice, and for the best possible reason: he's a lawyer looking at another lawyer.

Here's my thought on some unexamined dimensions of the whole process.

I spent a good part of my college years and young adulthood in the company of affluent and conservative young Catholics who were much like the Roberts we see in those early briefs: flip, snide, smartassed, and very full of Jesuitical hair-splitting. They had very little idea that their attitude would ever be of this much consequence, because they were sure that liberal hegemony was a windmill they could tilt at forever. It has to suck for Roberts to have some of his remarks from that era buzzing around his ears now.

For this fallen Catholic, that's the only part of Roberts-as-Catholic that gets my favourable attention. What gets more of my attention is a nasty little subtext that has resurfaced, thanks to the Vatican hierarchy meddling in American politics. Read Dershowitz carefully, and a number of other anti-Roberts commentators and bloggers, and you'll see the old ogre of anti-Catholicism peeking over the serifs. Like tuberculosis, it's been away, but was never vanquished. The only difference between the lies of 50 years ago and the suspicions of today is that Rome has become spectacularly insensitive to the consequences of playing in the American sandbox. All this will inevitably lead to schism between American Protestants and Catholics, and I'm for schism in religion every time. I'd prefer it, though, if progressive people took a hard look at their motives and language. I cannot forget that when my maternal grandmother was a girl in the mill towns of the Merrimack Valley, Catholics lost their jobs if they sent their kids to high school. We could do without that, and it is what happens when people get manic about Catholics.

Back to Roberts. Ideology, of any kind, is the last refuge of the mentally lazy. Consequently, neither set of ideologues quite get it when they're confronted with someone intelligent. When the someone won't commit in advance to a course of action, they absolutely don't get it and grow quite huffy.

I'm betting on Roberts' ego, not his ideology or his religion.

1) Lifetime offices that are bigger than their incumbents have had a way of changing the incumbents, and have done so at least since Thomas a Becket. It doesn't really matter whether the urge to go one's own way in such a position springs from ego, ambition, devotion to a higher calling, or all of the above. My intuition says Judge Roberts is a very big fan of Judge Roberts. He will be very willing to grow into this office.

2) John Roberts is alive to precedent in a way that few journalists, politicians or bloggers understand, and has no doubt reviewed the careers of preceding Chief Justices. If he is to be the prisoner of his ideology, to be the judge the right hopes he is and the left fears he is, he will resemble no predecessor so much as Roger B. Taney, today mainly remembered for the Dred Scott decision. Only Plessy v. Ferguson can claim to be in the same league of judicial infamy as Dred Scott v. Emerson, and Taney comes down to us as a byword for judicial obstructionism in the face of profound social change. As for being remembered, does the name of Melville W. Fuller spring to your mind? He was Chief Justice when Plessy was decided. Someone of Roberts' aptitude will surely have noticed that it is the reactionary Chief Justices who are forgotten, the ideologues who are condemned, and the consensus-builders who are honoured.

Suppose, too, that a new Chief Justice not only created judicial consensus, but returned compromise to a place of honour in American public life, and exercised the unique opportunities of that office to defuse the near-terminal polarisation of our civic life. Such a Chief Justice could be the most important since Marshall, more important than many Presidents, with good reason to believe his fame would last for ages.

Implausible? Perhaps. What I suggest is that some such siren seduces Judge Roberts in his private moments, and that it will make for very interesting times indeed.