Standing against judicial activism.

Photographer: Brendan Smialowski/AFP/Getty Images

The Lonely Road Ahead for John Roberts

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The U.S. Supreme Court term that starts the first Monday in October will mark the 10th anniversary of John Roberts’s introduction as chief justice. He can celebrate by reflecting on the assertion by Republican presidential candidate Ted Cruz that Roberts should never have been nominated.

Cruz’s repudiation of Roberts, a fellow product of the conservative legal establishment, is just the latest confirmation of an astonishing process: The chief justice, a lifelong conservative who hasn't abandoned his views, is nevertheless being abandoned by conservatives -- without being embraced by liberals.

Having exercised judicial restraint in the two Obamacare cases and in the gay-marriage decision, Roberts is in the admirable and unenviable position of having a principled, across-the-board stand against activism. It's admirable because justices are supposed to have, you know, a coherent judicial philosophy. And it's unenviable because, in an era of activism, it wins you nothing but enemies on both sides.

Perhaps suitably for the Supreme Court, there’s a precedent for this process: Justice Felix Frankfurter, who joined the Supreme Court as a prominent liberal and found that his refusal to adopt judicial activism lost him his liberal legacy without gaining him a conservative one. Today, this extraordinary justice, one of the fathers of judicial restraint, has almost no fans or supporters -- except possibly John Roberts.

Frankfurter started on the opposite side of the spectrum from Roberts. As a young government lawyer and Harvard law professor, Frankfurter became nationally known for his advocacy of liberal and even left-wing causes. He vociferously criticized the murder convictions of Italian anarchists Nicola Sacco and Bartolomeo Vanzetti, who may well have been guilty and in any case certainly belonged to what we would today consider a dangerous terrorist organization. He strongly supported labor unions, helped found the American Civil Liberties Union, and was a national board member of the National Association for the Advancement of Colored People. He was a close adviser to Franklin Delano Roosevelt, instrumental in shaping the second New Deal. By the time he became a justice in 1939, he was one of the most famous liberals in the country.

As part of his liberalism, Frankfurter pioneered the ideology of judicial restraint, which he developed to criticize the libertarian, property-protecting Supreme Court majority that struck down progressive legislation on wages, hours and working conditions. He marshaled the views of Oliver Wendell Holmes and Louis Brandeis to support his critique, but in truth both of those great justices exercised judicial restraint somewhat selectively.

Frankfurter took seriously the judicial philosophy he’d developed as a critic of the court’s majority. And he stuck with his restraint even when FDR’s numerous Supreme Court appointments (eight plus a chief justice) gave liberals a majority. To the other liberals, judicial restraint was a tool of criticism that they could jettison when they had the votes. To Frankfurter, it was the creed of a lifetime that he was unwilling to abandon.

The result made Frankfurter look like a conservative on a court that moved steadily to the left. He voted twice to allow schools to expel students who wouldn't recite the Pledge of Allegiance and salute the flag. He voted to oppose judicial intervention in electoral districting, the issue that led the court to “one person, one vote.” By the time he retired in 1962, he was being rejected by young liberals, to whom Earl Warren’s activist court embodied the true liberal spirit.

Today, Frankfurter is never mentioned as a liberal hero. But movement conservatives don't like him either: How could the post-Ronald Reagan right ever embrace one of the fathers of the New Deal and a lifelong admirer of FDR? To make matters worse, Frankfurter always considered himself a liberal, never conservative.

The parallels to Roberts are striking. He came on the bench as a highly credentialed conservative who clerked for Justice William Rehnquist and worked in the Reagan administration. He was deputy solicitor general under President George H.W. Bush before being nominated to the court by President George W. Bush.

By the time Roberts came of age, judicial restraint had become a conservative position in response to judicial activism from the left. As a conservative, Roberts believed in judicial restraint, a principle he invoked at his confirmation hearings.

Once on the court, however, especially after the retirement of Justice Sandra Day O’Connor, Roberts found himself with a conservative majority that would kick into action whenever Justice Anthony Kennedy’s view brought him to a conservative result. Roberts could’ve pressed his advantage and abandoned judicial restraint, as his conservative colleagues are all prepared to do.

But Roberts has balked at judicial activism in the most high-profile cases the court has faced, bitterly disappointing conservatives like Cruz. His motivation is in part to preserve the legitimacy of the court -- and that's a perfectly appropriate rationale, part and parcel of judicial restraint in the Frankfurter tradition. According to this view, the court lacks the legitimate authority to overturn legislation passed by an empowered democratic majority, and harms itself and the democratic process when it does so.

Having refused to drop his judicial restraint when it’s convenient, Roberts is now being abandoned by his fellow conservatives. Like the liberals who rejected Frankfurter, these conservatives only care about winning, and treat judicial philosophy as a useful fiction.

It would be nice to think that history will vindicate Roberts. But it hasn’t vindicated Frankfurter -- at least not yet. Constitutional law should be more than pure politics. Roberts deserves admiration, not contempt. Maybe someday he’ll get it.

  1. That's not to say Roberts is never activist -- after all, he joined the majority in Citizens United. But the First Amendment has always been a gray area for judicial restraint, and let's not forget that the ACLU urged the court to treat corporations as persons in that case.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Noah Feldman at nfeldman7@bloomberg.net

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Stacey Shick at sshick@bloomberg.net