Following Friendly or Running to Rehnquist? A Review of Joan Biskupic’s The Chief

Daniel Coble†

Ever since Chief Justice John Roberts was a child, he wanted to stay ahead of the crowd. This mission has driven him to the pinnacle of his career with a determination to be the best, whether he admits it or not. After decades of searching for this zenith, and ultimately reaching it, what does the Chief Justice want for when he is gone? While it is true that he routinely declares that his legacy is insignificant at this point and can only be determined long after he has passed, it is evident from his time on the high Court that what future Americans make of him, and more importantly “his Court” is at the forefront of his thinking. In The Chief by Joan Biskupic, readers are drawn into the life and turbulent times that sit atop our nation’s highest court. Biskupic, with her unparalled access, paints Roberts’ life from beginning to present. This remarkable story doesn’t attempt to answer a question that is unanswerable today. Rather, the author presents this story like a thorough investigation and leaves the ultimate question up to the reader to decide: what will be the legacy of our 17th Chief Justice?

John Roberts grew up in a humble Midwestern life. His father, who worked as a steel plant manager for decades, didn’t have to force a young Roberts to strive for excellence. While Roberts never claimed that his goal was to sit on the Supreme Court, his work ethic and intelligence shined enough that it surprised no one that that is where he ended up. After attending an elite boarding school, Roberts went on to Harvard and then Harvard Law School. Avoiding politics during this time seemed like an easier path for Roberts to take, however, his conservative and deeply held religious views were not lost on anyone. After law school, Roberts knew where his calling was: President Ronald Reagan and this new conservative movement.

During his years in the Reagan administration, Roberts began what seemed to be a confirmation process for himself 30 years in the making. From helping to prepare Supreme Court Justices for confirmation hearings, to expressing his own views on the Voting Rights Act, Biskupic lays out the full story of Roberts and the views that he held. Up until his nomination for a seat on the Court of Appeals for the District of Columbia, Roberts has been consistent in his conservative beliefs and in particular the issue of race. So much so that he had to prepare briefs on his behalf categorized as pro-civil rights, pro-voting rights, and pro-labor (whether or not that was accurate).

It wasn’t long before Roberts moved from the Court of Appeals to nomination for associate justice to nomination for Chief Justice. And this is the true excellence of Biskupic’s book. This is where the author not only gives intriguing and never before seen stories, but she also peppers them with legal history and anecdotal notes that keep the readers flipping page after page.

Because it is difficult for any justice’s legacy to be born overnight, I believe this book lays out two paths that the author sees how history will remember this justice. As a young attorney, Roberts clerked for two prestigious judges: Judge Henry Friendly and Justice William Rehnquist. While both judges are conservative in their ideology, each path leads to different legacies. As Biskupic presents in her book, “Friendly was a model of intellectualism known for his modest judicial approach and respect for precedent. Rehnquist was brilliant but ideologically driven to reinterpret court precedents in accordance with his conservative views.”

One has to look no further than how Roberts handled the highly anticipated case that was Obamacare. Not only was Roberts the justice that kept the health care law in place, but he also went out of his way to negotiate with the more liberal justices to make sure that the Court would not be the institution that dismantled the law. Many conservatives believed that he wasn’t voting based on his interests, but rather on the “reputation and institutional legacy” of the Court. The author even comments that Roberts’ legal arguments were not consistent nor coherent.

Another example of Roberts following Friendly is how he approached the constitutionality of gay marriage. While his dissent in Obergefell was satisfying to his more conservative holdings, he actually tried to prevent the Court from taking the case in the first place. He believed that it was better for the “elected officials and those who put them into office to control the trajectory of the debate.”

On the other hand, Roberts at times seems to continue to run to Rehnquist. Chief Justice Rehnquist was skilled at his position and knew how to slowly but surely tilt the court towards his views. According to Biskupic, Roberts seemed to be doing just that when it came to the Voting Rights Act and defanging the preclearance requirement. From his time working in the Reagan administration to his time on the Court, Biskupic states that he “believed then, and believes to this day, that the focus should be on individuals who have been personally wronged.” Even though Roberts knew how divisive this ruling would be and how it could shape the views on his legacy, Roberts handed down this ruling.

How will history treat Chief Justice John Roberts and his court? That story has yet to be written. But Biskupic’s ability to illuminate where Roberts has come from to where he is today, gives the reader a head start to begin judging the judge. And in the end, will Roberts follow Friendly or run to Rehnquist? Only time will tell.

† Daniel Coble is the Associate Chief Magistrate Judge for Richland County, South Carolina. Daniel previously worked as a prosecutor with the Fifth Circuit Solicitor’s Office. He received his B.A. in Economics from Clemson University and his J.D. from the University of South Carolina School of Law.