John Roberts: the difference four years makes

By James Fallows

Chief Justice-nominee Roberts, in his opening statement at his confirmation hearings in September, 2005:

"Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

"The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

"But it is a limited role. Nobody ever went to a ball game to see the umpire.

"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."

Chief Justice Roberts last September, questioning Solicitor General Elena Kagan, during oral arguments in the Citizens United v Federal Election Commission corporate-funding case whose decision was announced yesterday (as reported by Stuart Taylor here):

" 'When corporations use other people's money to electioneer,' as Kagan explained, 'that is a harm not just to the shareholders themselves but a sort of a broader harm to the public,' because it distorts the political process to inject large sums of individuals' money in support of candidates whom they may well oppose.

"Roberts sharply challenged this line of argument. 'Isn't it extraordinarily paternalistic,' he asked, 'for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can't sell their shares or object in the corporate context if they don't like it? ... ' "We the government have to protect you naive shareholders." '

"Kagan responded that 'in a world in which most people own stock through mutual funds [and] through retirement plans ... , they have no choice. I think it's very difficult for individual shareholders to be able to monitor what each company they own assets in is doing.' "

Of course Kagan's response is the practical and real-world one. Virtually all such "wealth" as my wife and I hold, apart from our house, is in low-cost indexed mutual retirement funds. I literally have no idea which specific companies I might have bigger or smaller positions in. By the prevailing wisdom of the day, I'm behaving rationally for a non-expert prudent investor. By Roberts' standard, I am "too stupid to keep track" of what every one of these companies is doing and shifting my positions day by day in response. Or maybe just too lazy.

And even if Kagan were wrong -- and, she is right -- is it not breathtaking for one appointed Justice, on his own, to decide that he does not like the balance that elected legislators decided on many decades ago, and that many waves of his judicial predecessors have declined to tamper with?

On the merits, Roberts' approach is like the idiot-savant faith in flawless markets that we all recall from Introductory Ec class. The cliched joke about this outlook concerns the economist's refusal to pick up a $20 bill sitting on the sidewalk: After all, if really were a $20 bill, someone would already have picked it up. But the merits of his argument aren't the point. It's the disjuncture between the person who presented himself with "humility" at the confirmation hearings and the man happy to legislate from the bench.

The head of the nation's judicial branch was purposefully deceptive during his "umpire" testimony. Or he had no idea what his words meant. Or he has had a complete change of philosophy and temperament while in his mid-50s. Those are the logical possibilities. None of them is too encouraging about the basic soundness of our governing institutions.

This article available online at:

http://www.theatlantic.com/technology/archive/2010/01/john-roberts-the-difference-four-years-makes/34008/