On June 29, 2023, the Supreme Court of the United States struck down affirmative action admissions programs at Harvard University and the University of North Carolina. The majority opinion for both decisions was written by Chief Justice John Roberts Jr.
I opposed the nomination by former President George W. Bush that John Roberts become a justice, and eventually chief justice, of the Supreme Court. But I was not alone. Consider the following statement by another public figure.
The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95% of the cases, what matters on the Supreme Court is those 5% of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.
In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
“In those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”
I talked to Judge Roberts about this. Judge Roberts confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn’t like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.
I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the solicitor general’s office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.
I want to take Judge Roberts at his word that he doesn’t like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.
The bottom line is this: I will be voting against John Roberts’ nomination. I do so with considerable reticence. I hope that I am wrong. … I hope that he will recognize who the weak are and who the strong are in our society. I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes.
U.S. Sen. Barack Obama made that statement when he announced he would vote against confirming John Roberts Jr. to become associate justice of the Supreme Court in 2005. Obama’s complete statement can be read here.
I was licensed to practice law in 1979, 44 years ago. In addition to practicing law for almost 15 years, I am a former law professor who taught constitutional law, pre-trial criminal procedure, administrative law, and a seminar on law and cultural competence at the Bowen School of Law of the University of Arkansas at Little Rock between 2009 and 2011. From Jan. 1, 1996, until Dec. 31, 2008, I decided civil and criminal appeals as a judge on the Arkansas Court of Appeals. From Jan. 1, 2011, until Dec. 31, 2022, I presided over criminal and civil cases in the Sixth Judicial Circuit of Arkansas, the judicial circuit with the most civil and criminal cases in Arkansas.
To borrow a line spoken by the character Tyrion Lannister on the HBO Game of Thrones series, “I know things” when it comes to constitutional law, judging and appeals.
I knew in 2005, when George W. Bush nominated John Roberts to become an associate justice on the Supreme Court that his intelligence and legal acumen had been used to advance interests and positions that maintained bigotry, discrimination and disregard for unprivileged persons. That knowledge led me to oppose his nomination, and I said so at a public policy forum during the September 2005 annual meeting of the National Baptist Convention USA, Inc. in Atlanta.
“I have long viewed John Roberts … as someone whose deepest loyalties favor the purveyors and beneficiaries of racial and other systemic injustice.”
Like Obama, I have long viewed John Roberts — at the time of his nomination, after he was eventually confirmed as chief justice following the death of William Rehnquist (for whom Roberts worked as a young lawyer), and now — as someone whose deepest loyalties favor the purveyors and beneficiaries of racial and other systemic injustice.
Beyond that, I sensed Roberts was a bully.
In the Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina cases, Roberts wrote the opinion for himself and five other justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Barrett) declaring the challenged affirmative action programs violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The majority overruled decisions by federal district courts in Massachusetts (for Harvard) and North Carolina (for UNC).
Those federal district judges conducted trials, heard witness testimony and reviewed documentary evidence. They studied the case law governing the Fourteenth Amendment’s guarantee of equal protection under the law and Title VI of the Civil Rights Act of 1964, the federal statute that prohibits discrimination in higher education.
The plaintiff attacking the affirmative action programs is a nonprofit group called Students for Fair Admissions. SFFA is a limited liability organization funded by Leonard Leo, a man referred to as “the king of dark money” in an article that appeared in the Guardian newspaper.
Let’s be clear. Federal district judges in Massachusetts and North Carolina ruled that SFFA failed to prove that either of the challenged affirmative action programs discriminated against any student, let alone “students.” Leonard Leo’s money did not produce evidence that persuaded federal district judges that the Harvard and UNC affirmative action programs discriminate.
But Leonard Leo and his right-wing dark money donors bet on getting their way by creating SFFA so it would file lawsuits that would be decided by the Supreme Court. They counted on a cabal of bullies — John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanagh and Amy Barrett — to outlaw the Harvard and UNC affirmative action programs based on their ideological disapproval of affirmative action, not because the evidence showed anyone suffered discrimination at Harvard and UNC.
“Their decision was a blatant demonstration of judicial bullying.”
The majority opinion by Roberts and concurring opinions by Thomas, Gorsuch and Kavanaugh do not identify any student whose application to Harvard or the University of North Carolina was unfairly denied because of the challenged admission programs. Their decision was a blatant demonstration of judicial bullying.
That is what I sensed about Roberts when he was nominated for the Supreme Court. Roberts reminded me of Roger B. Taney, the chief justice who authored the notorious 1857 decision in Dred Scott v. Sandford, when the Supreme Court held that because Scott was an African, he and other Africans — whether enslaved or free — had no rights under the Constitution of the United States, including the right to challenge his enslavement.
Like Roger Taney did in 1857, John Roberts uses judicial power now to uphold bigotry, supremacy and privilege. He did it in 2013 when he led the Supreme Court to invalidate the “preclearance” requirement of the Voting Rights Act of 1965 in Shelby County v. Holder. He did it again last June when he led the Supreme Court to overturn Roe v. Wade in the Dobbs v. Jackson Women’s Health case.
The Students for Fair Admission decisions Roberts announced to outlaw affirmative action admission programs at Harvard University and the University of North Carolina show that Obama and I were right when we opposed his confirmation.
John Roberts sides with and leads a cabal of bullies.
Wendell Griffen is a retired judge in Arkansas who continues to serve as pastor of New Millennium Baptist Church in Little Rock, Ark.
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