Supreme Court Review 2016/2017 TERM
WEDNESDAY, AUGUST 23, 2017

THE JUSTICES OF THE UNITED STATES SUPREME COURT

They are called "Justices" not "Judges" to differentiate themselves from lower court judges

Chief Justice Roberts is the 17th and current Chief Justice of the United States Supreme Court. He was nominated to the Supreme Court by President George W. Bush to replace Chief Justice William Rehnquist who died while in office. Chief Justice Roberts assumed the office of Chief Justice at the age of 50 on September 29, 2005.

Justice Roberts was born on January 27, 1955 in Buffalo, New York to a Catholic steel worker and a homemaker. His mother's family is from Czechoslovakia and his father's family from England. Justice Robert's father worked as a plant manager at Bethlehem Steel. Roberts was the second born child and the only brother to 3 sisters. Around age 8, Roberts and his family moved from Buffalo, New York to Long Beach, Indiana - a town of about 1500 people on Lake Michigan. They moved because Robert's father was helping to establish a new plant in a nearby town. In Long Beach, Roberts attended private school and a nearby exclusive Catholic boarding school called La Lumiere, where the student population was 125 students. At La Lumiere, Roberts was captain of the football team and competed in wrestling and track. He was also on the student council, the editorial board of the student newspaper and in the drama club. His junior year he played Peppermint Patty in the school's production of "You're A Good Man, Charlie Brown." During his summers Roberts worked on the floor of the Burns Harbor steel mill. His family was reported to be tight-knit and happy. Roberts earned top grades throughout high school and graduated at the top of his 25-member class. His classmates and teachers described him as very intelligent with a conservative bent. He was a quiet child but not anti-social.

In 1972, he left Long Beach to attend Harvard University. Roberts originally intended to be a history professor and graduated in 1976 summa cum laude with an A.B. in history. But he subsequently decided to attend Harvard Law School. At Harvard, Roberts again earned top grades and was the managing editor of the Harvard Law Review. Roberts graduated magna cum laude from law school in 1979. His best friend at law school told the New York Times, "By temperament, [Roberts is] not a flame-thrower, he's somebody who has respect for institutions. He's not likely to be anybody to do anything too radical."

After law school, Roberts clerked for Judge Friendly on the Second Circuit Court of Appeals in New York. Judge Friendly was one of the most respected appeals court judges of his time. As one former law clerk of Friendly's told the New York Times, "Friendly had a proper view of the limited role of judges. He had a guiding principle that when deciding a case, a judge should always think about how the ruling would be cited back at you in the next case. He wasn't going to vary his principles from case to case, just because he may have liked the facts differently. He often decided cases in ways he would have preferred not to." Roberts clerked for Friendly for one year.

The next year Roberts spent one year clerking for then-Associate Justice of the Supreme Court William Rehnquist. Rehnquist became the Chief Justice of the Supreme Court five years later in 1986. Rehnquist was deeply respected by his fellow Justices and had a solidly conservative approach for the 33 years he was on the court.

Following his clerkship with Rehnquist, Kenneth Starr, who was then Chief of Staff for U.S. Attorney General William French Smith under the Reagan Administration, hired Roberts to work for him. Roberts was hired to be a special assistant to the Attorney General. Like a clerk, a special assistant engages in research and writes memos on issues of interest to his boss.

Roberts then went to work for Reagan as an associate in the White House General Counsel's office. Roberts began to focus his career and cemented a future in politics in the General Counsel's office. He was well liked there and became a trusted advisor and a go-toperson for the General Counsel Fred Fielding. Roberts spent four years in the White House. He then joined a Washington, DC law firm (Hogan & Hartson) in private practice as an associate counsel and worked as an appellate advocate for three years.

It didn't take long, however, for Roberts to rejoin the government workforce. In 1989, Ken Starr, now President George H.W. Bush's Solicitor General, hired Roberts to serve under him in the U.S. Solicitor General's office. Roberts served as the Principal Deputy Solicitor General for the next four years. The U.S. Solicitor General is responsible for representing the United States Government before the United States Supreme Court. Working in the Solicitor General's office is regarded as some of the best training a lawyer can get in Supreme Court practice.

In 1992, then President Bush nominated Roberts to the United States Court of Appeals for the D.C. Circuit, but Senate Democrats expecting a win in the 1992 presidential election refused to allow Roberts' nomination to come up for a vote. Roberts returned to private practice at Hogan & Hartson where he became a partner and led the firm's appellate practice. He also served as an adjunct professor at Georgetown University's School of Law. During the next decade, including the eight years of the Clinton Presidency, Roberts worked tirelessly as a partner. Among other work, he argued 39 cases before the Supreme Court, prevailing in 25 of them.

In 2000, Roberts reentered the political process by traveling to Tallahassee, Florida to advise Governor Jeb Bush and assist George W. Bush's legal team in the Florida election recount, a fight which ultimately landed before the Supreme Court as the now infamous case of Bush v. Gore. A year later, new president George W. Bush nominated Roberts for a seat on the Court of Appeals for the D.C. Circuit, but again the Democrats refused to give Roberts a hearing, so the nomination stalled. In 2003, however, the Republicans regained the Senate and Bush resubmitted Robert's nomination. This time Roberts was confirmed.

Roberts served for two years on the Court of Appeals for the D.C. Circuit. During that time he wrote opinions in 49 cases. None of Roberts' opinions during that time period were particularly controversial and provided no clear predictions on how Roberts would vote in the future. In one opinion, Roberts dismissed a 12-year-old girl's case against the Washington, D.C. Metro Transit Authority for arresting and searching her for eating a single french fry in a metro station. The girl's case was tenuous, since she did technically violate the law against eating in the D.C. subway system. The facts of the case nevertheless caused a controversy that induced the MTA to change the rules for dealing with people who eat food on the subway - now the penalty is a ticket, not an arrest.

Another opinion that received attention was Roberts' dissent from the denial of a rehearing in Rancho Viejo, LLC v. Norton. There a real estate development company wished to construct a 202-acre housing development in San Diego in an area that the United States Fish and Wildlife Service determined would likely jeopardize the continued existence of the Arroyo Southwestern Toad, an endangered species. The Fish and Wildlife service proposed an alternative plan that would have allowed the real estate company to build its project while protecting the toad.  But the company refused and sued instead.

Because Rancho Viejo's plan involved the discharge of "fill into waters of the United States, including wetlands," thus effecting interstate commerce, the company was required by section 404 of the Clean Water Act to obtain a permit from the U.S. Army Corps of Engineers. The Corps determined that the project "may affect" the Arroyo Toad population in the area and sought a formal consultation with the Fish and Wildlife Service pursuant to § 7 of the Endangered Species Act (ESA). The company argued, however, that application of the ESA to it was unconstitutional because the Arroyo Toad only existed in California and, furthermore, its construction was wholly located in California—therefore, only California law should apply, not the law of the United States.

A panel of the D.C. Circuit disagreed and held that it was not the toad's location that mattered, as the federal law did not purport to tell a toad what it could or could not do. Instead, the law regulated the construction company, which affected interstate commerce. Because the company availed itself of United States waters, the United States could prevent it from endangering species the U.S. government found to be threatened with extinction.

When the real estate development company sought a rehearing en banc (which was denied), Roberts took the opportunity to comment on the case. Roberts believed that the Circuit panel's analysis conflicted with Supreme Court precedent and argued, as the company did, that the analysis should center on the toad in the case and not on the construction company. Justice Roberts wrote: "The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'Commerce among the several States.''' He believed that by ‘‘looking primarily beyond the regulated activity" in this manner the panel "effectually obliterate[s]" the limiting purpose of the Commerce Clause. Therefore, under Roberts's analysis, the endangered species act could not apply to any species that does not travel between states.

Roberts' time on the D.C. Circuit was short. After only two years, he was nominated by President George W. Bush to fill the vacancy caused by Justice Sandra Day O'Connor's resignation. During his confirmation process, then-Chief Justice Rehnquist died and Bush nominated Roberts to take Rehnquist's spot instead of O'Connor's. Since Rehnquist died in September and the Supreme Court's term starts every year in October, Bush asked that Roberts confirmation be expedited, which it was. Roberts was confirmed on September 29th by a Senate vote of 78-22. Roberts took office at the age of 50, becoming the youngest member on the court. (Five years later, Justice Kagan, born in 1960, became the Court's youngest justice when she took the bench.)

Roberts' Jurisprudence

On the Court, Roberts has proved to be a moderate conservative justice, occasionally siding with the liberal justices but mostly siding with the Court's conservative justices.

Consent to Search
The first dissenting opinion he authored was in Georgia v. Randolph (2006). Janet and Scott Randolph were married. In May 2001, she left her husband and took her son with her to Canada. She returned several months later—although its not clear if she was returning to reconcile with her husband or retrieve some belongings. After a heated exchange one day, Scott left with their son and Janet called the police. When the police arrived, Janet told them that Scott had left with their son and that Scott had a drug problem, which was causing the family financial troubles. She told police that there was drug evidence in the house. Scott then arrived back at the house.

When Scott returned, he explained to police that he had taken their son to a neighbor's house out of fear that Janet would take the child out of the country again. He also told police that it was his wife, not him, that was the drug abuser. The police went with Janet to retrieve the child. When they returned they confronted Scott about his drug use and asked him for permission to search the house. He emphatically refused them permission to search the house. They then turned to Janet and asked her for permission, which she gave. They proceeded to enter the house and she led them to a room where officers noticed a cut straw with a powdery residue on it they believed to be cocaine. The substance turned out to be cocaine and Scott was charged with drug possession.

Ordinarily, the police need a warrant to search your house. There is an exception, however, if you give your consent to a search. This case considered whether when two people have control over a place and one person gives consent, but the other does not, whether officers may search based on only one person's consent. The law is clear that if Scott was not home or asleep or busy in the barn then Janet's consent would have been enough.

In a 6-3 decision the Supreme Court held that a single occupant's refusal to permit entry to police is enough and the police would have to obtain a warrant first before entering. Justice Roberts, however, dissented and authored an opinion joined by Justice Scalia. Roberts argued, "if an individual shares information, papers, or places with another, he assumes the risk that the other person will in turn share access to that information or those papers or places with the government" and therefore that co-occupants have "assumed the risk that one of their number might permit [a] common area to be searched." The majority, however, responded that the Bill of Rights are not shared rights subject to majority vote, they are individual rights. The majority stated, "In today's world the only advice that an officer could properly give should make it clear that each of the partners has a constitutional right that he or she may independently assert or waive. Assuming that both spouses are competent, neither one is a master possessing the power to override the other's constitutional right to deny entry to their castle."

Roberts ends his dissenting opinion by stating:

The majority reminds us, in high tones, that a man's home is his castle, but even under the majority's rule, it is not his castle if he happens to be absent, asleep in the keep, or otherwise engaged when the constable arrives at the gate. Then it is his co-owner's castle. And, of course, it is not his castle if he wants to consent to entry, but his co-owner objects. Rather than constitutionalize such an arbitrary rule, we should acknowledge that a decision to share a private place, like a decision to share a secret or a confidential document, necessarily entails the risk that those with whom we share may in turn choose to share--for their own protection or for other reasons--with the police.

Roberts also expressed concern that the majority's rule could prevent police from investigating reports of domestic violence. The majority, however, addressed this problem in their opinion, stating, "No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering [no matter] how much a spouse or other co-tenant objected."

Notice of Tax Sale
A month later, in Jones v. Flowers (2006), Roberts joined the Court's more liberal justices and authored the majority opinion in a case concerning what constitutes notice before the government can sell a person's real property at auction to satisfy deliquent property tax payments. In Jones, a man, Gary Jones, purchased a house in Little Rock, Arkansas in 1967, where he and his wife lived until they separated in 1993. During that time Jones paid his mortgage each month for 30 years and the mortgage company paid his property taxes. When Jones and his wife separated Jones moved into an apartment in Little Rock and his wife continued to live in the house. Four years later, in 1997, he successfully paid off his mortgage but he failed to notify the property tax collector of his change of address and the property taxes on the property went unpaid. In April 2000, after the property was certified as delinquent the Commissioner of State Lands sent a certified letter to the property concerning the delinquency, notifying Jones of his right to redeem the property. It also stated that unless it was redeemed the house would be subject to public sale two years later. No one was home to sign for the letter and it was not claimed at the post office where it sat for 15 days. The post office ultimately returned the letter to the Commissioner.

Two years later the Commissioner published a notice of public sale in a state newspaper. No bids were submitted, which permitted the state to negotiate a private sale of the property. Several months later, a woman, Linda Flowers, submitted a purchase offer. The Commissioner mailed another letter to the property, but like the first letter it was returned unclaimed. Flowers purchased the house for one-quarter of its market value. After a 30 day period for post-sale redemption passed, Flowers had an unlawful detainer notice delivered to the property, which was successfully served on Jones's daughter at the property. The daughter contacted Jones and notified him of the tax sale. Jones then filed a lawsuit, which, ultimately, made it to the Supreme Court, arguing that his property had been taken from him without constitutional due process.

Justice Roberts authored the majority opinion, joined by the court's more liberal Justices (Stevens, Souter, Ginsburg and Breyer), holding that when a mailed notice of a tax sale is returned unclaimed due process requires that the State, where practicable, take additional reasonable steps to attempt to provide notice to the property owner before selling his or her property. Justice Roberts suggested that the State could have tried using regular mail and could have address mail to "Occupant" or could have posted a notice on the door of the property.

Justice Thomas, joined by Justices Scalia and Kennedy (with Justice Alito recused) dissented, arguing that the Fourteenth Amendment was not so onerous on states as to require the state to take additional steps beyond those it had already taken.

Federal Power
Roberts has also taken a more expansive view of federal power than the other more conservative justices. Indeed, Justice Roberts has more than once claimed a great admiration for the Court's first Chief Justice, John Marshall, who greatly expanded federal powers during his tenure. In United States v. Comstock, in 2010, Roberts again joined the Court's more liberal Justices and authored a majority opinion that quoted extensively from Chief Justice Marshall's opinions augmenting federal power. In Comstock, Justice Roberts held that a federal law which permits the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released was constitutional and a proper exercise of Congress's necessary and proper clause power even though the Constitution nowhere explicitly gave Congress the power to criminalize sex crimes.

Justice Thomas, joined by Justice Scalia dissented stating that since the Necessary and Proper Clause empowers Congress to enact only those laws that "carr[y] into Execution" one or more of the federal powers enumerated in the Constitution. Where a law executes no expressly enumerated power Congress is powerless. Justice Kennedy concurred in the decision but wrote a separate concurrence to distance himself from some of the more expansive views of federal power suggested by the majority opinion. Justice Alito, also concurring, began his concurrence by stating, "I am concerned about the breadth of the Court's language and the ambiguity of the standard that the Court applies but I am persuaded, on narrow grounds, that it was "necessary and proper" for Congress to enact the statute at issue in this case."

Two years later, Chief Justice Roberts authored the majority opinion in National Federation of Independent Business v. Sebelius upholding the Patient Protection and Affordable Care Act (commonly referred to as Obamacare). While another example of Chief Justice Roberts joining the more liberal justices to save a federal law from being invalidated by the Court, this time Chief Justice Roberts did so by limiting the reach of the Commerce Power and, therefore, reigning in Congress's Commerce Clause powers. He held that while the indivdual mandate survived under Congress's Taxing Power it could not survive under the Commerce Clause or under the Necessary and Proper Clause. While many liberals hailed the Sebelius decision as win, the limiting of the Commerce Power and Necessary and Proper Clause will likely have far more lasting effects on the Court's jurisprudence.

Affirmative Action
While Chief Justice Roberts has indicated that he is likely personally opposed to affirmative action of any kind - in Parents Involved in Community Schools v. Seattle School District No. 1 (2007) he wrote "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race" -  he is also a closer adherent than many of his colleagues to the doctrine of stare decisis, which promotes respect for the Court's prior decisions. Therefore, many think it unlikely that he would vote to overrule the Court's prior decisions in Grutter and Bakke approving of affirmative action programs that treat race as but one non-decisive factor among many. in Parents Involved, for instance, Chief Justice Roberts accepted Grutter as binding precedent but authored the majority opinion refusing to extend Grutter beyond the context of higher education.  Parents Involved considered an affirmative action admissions policy at the high school level, which the court refused. The Court's upcoming decision in Fisher v. University of Texas at Austin will be the first time that Chief Justice Roberts will have an opportunity to weigh in on the issue of affirmative action in higher education admissions.

Abortion
As for abortion, Roberts has voted to limit the abortion right, joining the majority in Gonzales v. Carhart that upheld a law banning partial birth abortion, but he has not indicated that he would overrule Roe v. Wade. 

Off the Bench
Off the bench, Roberts is an avid golfer. He is reported to be in good health, although he suffered a seizure at his vacation home in Maine in 2007, and had a similar attack 14 years earlier in 1993. The seizure was termed a "benign idiopathic seizure" and was not linked publicly to any chronic condition. As Chief Justice, Roberts makes an annual salary of $223,500. The rest of the Justices make $213,900 a year. When Chief Justice Roberts was nominated to the Supreme Court, in 2005, his net worth was $6 million.

Roberts was married, in 1996, to Jane Sullivan Roberts, a lawyer, who is a partner at the international legal talent search firm Major, Lindsey & Africa. She received her A.B. degree in 1976 from the College of the Holy Cross. She then received a Master's degree in education from Melbourne University in 1977 and her M.S. from Brown University in 1981. She graduated from Georgetown University Law Center with a J.D. in 1984. In her 20's she backpacked through Europe and Nepal. More recently, she was an active member of the pro-life organization Feminists for Life and is a trustee at her alma mater College of Holy Cross. John and Jane are both the same age and married late in life, at age 41. They have two adopted children, a boy and a girl, both now 10 years of age.