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Extreme?
If John Roberts is anti-civil rights, very many judges are.


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Peter Kirsanow

Since his nomination, the mantra of John Roberts’s opponents has been that he’s “out of the mainstream” and “extreme.” These descriptions have been applied most often to Roberts’ positions on matters related to civil rights.

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Roberts’s opponents have pored over thousands of pages of the memoranda and briefs written by Roberts as a counsel and advocate for evidence of his policy preferences. Their premise is that Roberts’ policy preferences–ostensibly revealed in such memoranda and briefs–will be incorporated into his decision making on the Supreme Court.

Curiously, his opponents have avoided discussing the cases he’s actually decided as a judge (other than Hedgepeth v. Washington Metropolitan Area Transit Authority, the “French fry case”)–incontrovertibly the best evidence of his judicial approach. Rather, they concentrate on positions he’s argued as an advocate, equating them with his own personal policy preferences. The reason for this is that his record as a judge completely refutes their contention that he’s out of the mainstream. Of the published three-judge panel opinions issued by the D.C. Circuit Court of Appeals during Roberts’s tenure, 124 of the 129 in which Roberts participated were unanimous. Roberts voted with the majority 125 of 129 times and wrote 45 majority opinions, 43 of which were unanimous. Roberts voted with his colleagues 97 percent of the time. Even when he was on panels with two other Democrat-appointed judges the decisions were unanimous 85 percent of the time. Evidently, the entire D.C. Circuit Court of Appeals, including Democrat-appointed judges, must be out of the mainstream.

Roberts’s opponents maintain that the policy preferences allegedly revealed in the briefs he’s written as an advocate are radical and regressive. Setting aside for a moment the fact that his opponents have distorted grotesquely the positions contained in his memoranda and briefs (“Roberts Opposes Equal Pay For Women!”; “Roberts Opposes ‘Fundamental’ Constitutional Rights!”), if Roberts’s advocacy positions regarding civil rights are, as his opponents insist, extreme or out of the mainstream, wouldn’t it be reasonable to expect that those positions would be summarily rejected by the Supreme Court? After all, if Roberts is the Bull Connor of appellate civil-rights advocacy, wouldn’t the Supreme Court contemptuously throw out the extremist arguments he’s made before it? There should be plenty of evidence to examine; Roberts has appeared before the Court more than almost anyone else in the last two decades. Let’s take a look.

A search of the scores of cases Roberts has litigated before the Court in the last 20 years produces 23 cases that may be termed, in the traditional sense, “civil-rights cases.” That is, the issues in the cases involve matters pertaining to constitutional provisions such as the 5th or 14th Amendments or statutes such as the 1964 Civil Rights Act, 1965 Voting Rights Act, Americans with Disabilities Act, etc.

Before examining how Roberts’s advocacy interest fared in such cases consider for a moment all of the hurdles an advocate must clear before even getting to make an argument before the Court. Of the tens of thousands of cases litigated annually in the lower courts, the Supreme Court reviews only about 100-120 a year. By the time the arguments advance to the Supreme Court they’ve gone through a torturous gauntlet of legal analyses. Most arguments that survive to be heard before the Court are taut and tempered. Yet 50 percent of these arguments must necessarily fail, regardless of how lucid, cogent or substantive they may be. Probabilities would suggest, therefore, that even if Roberts somehow slipped past the gatekeepers and got to make truly extremist civil rights arguments before the Court, it would reject virtually 100 percent of them, or at bare minimum, far more than 50 percent. Otherwise, the Court also would have to be labeled as out of the mainstream.

Roberts’s opponents should be stunned, then, to learn that the Court agreed with Roberts’s “extremist” civil rights positions 70 percent of the time.

The immediate reaction of some Roberts opponents might be to contend that this high percentage is inflated by the presence and influence of conservatives (read “fellow extremists”) on the Court such as Scalia and Thomas. But of the 13 justices before whom Roberts has argued 11 have agreed with his advocacy interest more than 50 percent of the time.

To be sure, of the current Supreme Court justices, those that agreed most often with Roberts’s advocacy interests were Rehnquist (74 percent of the time) Scalia (70 percent) Kennedy (70 percent) and Thomas (69 percent). Yet even liberals such as Ginsburg (60 percent) Stevens (57 percent) and Souter (57 percent) agreed with Roberts more than 50 percent of the time. (Note that not all of Roberts’s arguments in a given case were precisely adopted within the rationales of respective justice’s opinions. Nonetheless, the justices at the very least concurred with his general advocacy interest in the foregoing percentages.)

Organizations such as the NAACP, which last week declared that recently revealed documents indicate Roberts has “a longstanding hostility towards core NAACP civil rights priorities,” clearly must not be aware of the foregoing. Nor must they be aware of one additional fact: Thurgood Marshall, former chief counsel for the NAACP, lion of civil rights litigation and hero of Brown v. Board of Education, Sweatt v. Painter and Murray v. Pearson agreed with Roberts’s advocacy position 67 percent of the time–nearly the same as Scalia and Thomas and more than O’Connor, the justice who upon her retirement was praised as “moderate” by many of those now opposing Roberts.

Unless Roberts’s opponents are prepared to call Thurgood Marshall a civil-rights extremist they need to acknowledge that Roberts’s advocacy positions, as well as his judicial decisions are squarely within the mainstream.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights and an attorney in Cleveland, Ohio. These comments do not necessarily reflect the position of the commission.



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