Marcia Coyle

Author Marcia Coyle (Diego M Radzinschi, National Law / Simon & Schuster / March 31, 2008)

At his confirmation hearings for the position of chief justice of the U.S. Supreme Court, John G. Roberts Jr. parried skeptics with a reassuring metaphor: "Judges are like umpires," he testified. "Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical to make sure everybody plays by the rules."

Senators were charmed by that modesty, but his chief justiceship has hardly been a model of restraint.

The Roberts court has aggressively recalibrated the nation's laws in the areas of race, guns and political speech — three of the four cases that form the core of Marcia Coyle's "The Roberts Court: The Struggle for the Constitution." Roberts has signaled disdain for affirmative action despite generations of case law upholding the practice. He and his colleagues have been similarly cavalier with campaign finance, where its most unpopular ruling, Citizens United, displayed stunning ignorance of American politics though defensible fidelity to free speech.

No area belies Roberts' assertions of judicial modesty more clearly than the court's new approach to guns. Under the leadership of Justice Antonin Scalia, the court in District of Columbia v. Heller for the first time held that the 2nd Amendment protects an individual's right to bear a weapon rather than hinging that right on its relationship to a militia.

That may have been right as a matter of law — and the ruling has been broadly misinterpreted as prohibiting regulation of guns when, in fact, it specifically countenances restrictions — but it certainly was not an act of restraint. It overturned the District of Columbia government, relied on a shaky reading of history and ignored decades of prior court rulings.

So much for Roberts as umpire.

Coyle is a veteran Supreme Court correspondent, trusted by those who practice there. It's no surprise, then, that "The Roberts Court" is richly analytical and meticulously careful. It captures the two-step process that transformed the court under Roberts, first with his appointment and then with the one that followed.

When Roberts came to the court in 2005, he replaced Chief Justice William H. Rehnquist, so his appointment did not significantly alter the ideological balance. As Coyle observes, the Roberts court thus really began with the departure of Sandra Day O'Connor and the arrival of her replacement, Samuel A. Alito Jr. Though both are Republicans, she was a moderate, and Alito is anything but.

It is his vote that has pushed the court sharply to the right and given that wing of the court its five votes in many of the areas that Coyle examines.

Not always, however. The fourth of Coyle's case studies analyzes the challenge to President Obama's health care law. Here we see a different Roberts, finding a novel way to uphold the law. His four conservative colleagues concluded that Congress improperly exceeded its authority under the Commerce Clause in approving the law; Roberts agreed but found that the health care mandate, which is enforced by a penalty, was a constitutionally permitted act of taxation.

Coyle's book is even-handed and full of smart analysis, but there are no stunning revelations, and it's not really an inside account of the court. Although a number of the justices spoke to Coyle, they don't say much.

One consequence is that Coyle leaves some unanswered questions. The issue of how Roberts came to break from his conservative colleagues on health care, for instance, has been the subject of furious speculation, and Coyle does not resolve it.

That's disappointing but not fatal. Coyle's shrewd reading of the cases is supplemented by skillful reporting on those who practice before the court.

It's not the modest court that its chief once proposed; it is assertive and a bit scary — and worthy of this useful book.

Jim Newton is The Los Angeles Times' editor-at-large and the author of "Justice for All: Earl Warren and the Nation He Made."

jnewton3@tribune.com

 

'The Roberts Court'

By Marcia Coyle

Simon & Schuster,

416 pages, $28