The latest Fortune magazine cover story offers a fascinating profile of U.S. Chief Justice John Roberts. Though writer Roger Parloff clearly approaches his subject from the left, the resulting article is generally fair and enlightening.
Still, it?s occasionally funny to note how comments from Roberts that would elicit either a chuckle or a nod of agreement from the majority of readers of this forum instead prompt concern from Parloff.
For example, Parloff recounts the ?hapless toad? story:
It was a very brief dissent to a decision by the full Court not to rehear a case in which a three-judge panel had upheld the application of the Endangered Species Act to the protection of a creature called the arroyo toad. The potential sticking point, advanced by a real estate developer, was that the law had been passed on the basis of Congress’s constitutional power to regulate interstate commerce, yet it was being applied here, as Roberts memorably put it, to “a hapless toad that, for reasons of its own, lives its entire life in California.” The question then arose: Was the survival of a commercially useless toad whose habitat was entirely intrastate a matter that Congress could properly address under its power to regulate interstate commerce?
While those interested in limited government can see the humor in Roberts? remark, Parloff calls it ?profoundly unsettling, drily amusing, enigmatic.?
Here?s another example: As a Reagan administration employee, Roberts once responded to a congresswoman?s concerns about the ?gender pay gap? with the quip ?Their slogan may as well be, ?From each according to his ability, to each according to her gender.?? Though it?s an obvious reference to the famous Marxist justification for wealth redistribution, Parloff labels the comment a ?mildly offensive joke.?
Of more consequence is Parloff?s continued reference to the conservative nature of the Roberts court, an assertion he undercuts near the end of the 12-page article:
All the advocates interviewed for this article, and most (but not all) of the professors, insist that there is integrity to the Justices’ approaches and content to their asserted methodologies. After all, they argue, almost half the cases last term were decided 9-0, according to SCOTUSblog figures. While about one in five did end up 5-4, there were unexpected alignments in a third of those.
So two-thirds of one-fifth of the decisions in the last term could be labeled as 5-4 decisions that lined up along predictable partisan lines? That would be about two out of every 15 decisions, or a whopping 13 percent.
