April 17, 2019 – Attorney and legal journalist Joan Biskupic has released a biography on U.S. Supreme Court Chief Justice John G. Roberts Jr. at a critical moment in the High Court’s history, with judicial divides entangled in divided partisan politics.
Differing judicial philosophy is not new, but politics can muddle the independent judiciary. “It becomes harder and harder to repeat the admonition that politics has nothing to do with it,” Biskupic said in an interview with the State Bar of Wisconsin.
The liberal versus conservative divide appears hardened at 5-4 in favor of conservatives, without a clear swing justice such as Anthony Kennedy, who retired in 2018. Justice Kennedy was a President Ronald Reagan appointee who occasionally joined the liberal bloc in the politically charged cases that often divide the court.
Biskupic says it has become more difficult for the court to imbue judicial independence when the justices are divided on the same issues dividing Democrats and Republicans.
The division is amplified since every conservative justice was appointed by a Republican president, and every liberal justice was appointed by a Democrat.
Now, public perception is Chief Justice Roberts’s burden to bear. “He is very worried about the independence of the judiciary and the stature of the judiciary,” Biskupic said.
Coming to Wisconsin
Biskupic, who earned a B.A. in journalism from Marquette University before obtaining a law degree from Georgetown University Law School, is now a full-time legal analyst for CNN and has served as a U.S. Supreme Court correspondent for nearly 30 years.
org jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.
Her new book, The Chief: The Life and Turbulent Times of John Roberts, was released just last month. It is Biskupic’s fourth biography of a U.S. Supreme Court justice.
Prior biographies covered Justices Sandra Day O’Conner (2005), Antonin Scalia (2009), and Sonia Sotomayor (2014). Biskupic is a featured speaker at the State Bar of Wisconsin’s 2019 Annual Meeting & Conference (AMC), June 13-14 in Green Bay.
Her latest foray into the personal and professional life of the most important and influential jurist in the country has earned high praise as she makes the radio and TV rounds.
“The Chief offers an extraordinarily insightful, thoughtful and accessible analysis of Roberts’s personal life, professional career, judicial experience and approach to constitutional interpretation,” wrote Geoffrey R. Stone, Edward H. Levi distinguished professor of law at the University of Chicago, in a book review for the Washington Post.
“It is essential reading for anyone who truly wants to understand this pivotal moment in Supreme Court history,” writes Stone, noting that Biskupic was “well-positioned to offer often stunning insight into Robert’s life and thinking both on and off the court.”
A Reluctant Subject
Biskupic sat with Roberts for eight interviews, more than 20 hours. But unlike Antonin Scalia, who gave Biskupic 12, on-the-record and extensive interviews, Roberts was more guarded and negotiated what could go on the record, for attribution in the book.
“He was a reluctant subject,” said Biskupic. “It’s not an optimal situation, because I find that when a subject is not talking for attribution, it’s harder to go check out what the person said.” Biskupic could not ask others to elaborate on off-the-record remarks.
A seasoned journalist, Biskupic surmounted any obstacles to provide readers with a detailed and thorough perspective on Roberts, only the 17th chief justice in U.S. history.
“There have been 45 presidents, so that gives you a clue on how important the chief justice role is,” Biskupic said. “In addition, the chief has an additional weight on him.
“When he looks at a case, he’s not just thinking – ‘how would I vote to affirm, or reverse’ – he’s also thinking about the institutional stature of the Supreme Court.”
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A Chief Concern
Biskupic said institutional stature may have played a role in Chief Justice Roberts’s crucial vote to keep the Affordable Care Act (ACA) alive, in 2012, a move that angered Republicans who vowed to kill the law commonly known as Obamacare.
In her book, excerpted at CNN digital, Biskupic tells the inside story of how Roberts – appointed chief justice by President George W. Bush in 2005 – changed his vote. He had initially planned to strike down the individual mandate, the heart of the ACA.
Instead, he joined the four liberal justices to hold that the individual mandate – requiring people to purchase health insurance or face a tax penalty – was constitutionally sufficient under Congress’s taxing power. The move drew the ire of those on the right.
“Perhaps he was worried about his own legitimacy and legacy intertwined with concerns about the legitimacy and legacy of the Supreme Court,” said Biskupic, noting the chief may have been concerned about preserving the perception of judicial independence.
“John Roberts has acknowledged that he probably is voting slightly differently, or writing opinions in a slightly different way, than he would if he were an associate justice because he has larger concerns about how the public with regard the Supreme Court. I think that is especially true at this time of a very polarized country,” Biskupic said.
Biskupic notes that Chief Justice Roberts often speaks publicly about judicial independence from the political branches, and even made a rare public statement to rebuke President Donald Trump, who had made reference to an “Obama judge.”
At the same time, Chief Justice Roberts is distinctly conservative in his approach to constitutional issues that come before the court, including affirmative action and voting rights, which Biskupic covers extensively in the book, a portion of which is excerpted.
Biskupic traces Roberts’s conservative roots to his childhood, growing up in a fairly conservative home in Northern Indiana. His drive to succeed was evident, through examples Biskupic uncovers, and he earned admission to Harvard University.
He went on to Harvard Law School, and clerked for Judge Henry Friendly of the U.S. Court of Appeals, Second Circuit. He also clerked for then-Associate U.S. Supreme Court Justice William Rehnquist, whom Roberts would later replace as chief justice.
“He was influenced by his experience as a young man, but also the mentors in his life,” Biskupic said. “He was influenced in his approach to the law by Judge Friendly and Justice Rehnquist, as well as his experience in the Reagan Administration.”
Biskupic devotes a whole chapter of her book to the work he did as legal counsel for the Reagan White House, which begins with President Reagan’s 1981 Inaugural Address.
“John Roberts says, ‘I felt the call.’ He wanted to be part of the conservative movement that Ronald Reagan embodied,” Biskupic notes.
After serving under Reagan, Roberts worked in private practice for two years before becoming Deputy Solicitor General under President H.W. Bush in 1989, often arguing cases before the U.S. Supreme Court, which he would later lead as chief justice.
“I learned that when he was an oral advocate and doing such a fine job, he often had to quell his nervousness, his sick stomach. He was not a natural public speaker, but he worked hard to put his nervousness aside so he could appear at ease,” Biskupic said.
Sneak Peek: Listen to NPR Interview with Joan Biskupic
Nina Totenberg, a U.S. Supreme Court correspondent for NPR, interviewed Joan Biskupic last month on her new book about Chief Justice John G. Roberts Jr.
Biskupic has followed Chief Justice Roberts since his days as an oral advocate, and she has covered the U.S. Supreme Court for even longer. Her research and coverage of other justices adds layers to her expansive knowledge about the nation’s High Court.
“A lot of information in this book had its origins from working on the earlier books,” she said. “I learned about Roberts as I interviewed Justice Scalia. I learned about Roberts as I was interviewing Justice Sotomayor. I was always learning more about the chief.”
Biskupic interviewed around 100 people for her latest book on Chief Justice Roberts, details of which she will share with those who attend her talk in June.
She will also share her vast knowledge about the U.S. Supreme Court, which will be on the cusp of releasing major decisions when the AMC takes place June 13-14.
“In all of my books, I try to get information that reveals what it’s really like up there,” said Biskupic. “When I visit Wisconsin, I’ll talk about what I learned behind the scenes, give them an inside view of the Roberts Court. I’ll also talk about the rulings, because that’s when the court will be ruling on some of the most consequential cases of the term.”