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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: Sorry for the pregnant pause at the beginning of this recording, listeners.
N. Rodgers: Right before we started recording, I went, and I'm sure Aughie was like, did you fall? No, I just couldn't find the button on.
J. Aughenbaugh: I was just like, Well, this is an interesting way to start.
N. Rodgers: I have to admit that noise comes out of me about this court on a fairly regular basis. It would have been legitimate that Aughie was thinking, we're just going to start with guttural noises as the way to start this court. This is the last well, no, it's not. We are up to date with the court series with this set of episodes because this will be the Roberts Court, which is as we are recording current court of the Supreme Court.
J. Aughenbaugh: That is correct.
N. Rodgers: That will, of course, change. Unless John Roberts is immortal.
J. Aughenbaugh: Hey. Wow.
N. Rodgers: Which would be cool. It'd be an interesting twist. In which case, we'll just have to come back and do addendums to his court.
J. Aughenbaugh: Drama turgically, that would be an interesting twist. But no, listeners, as Nia pointed out, we are concluding this series where we looked at eras of the Supreme Court. As Nia pointed out, we are in the John Roberts court era, which actually began in 2005 when John Roberts succeeded William Rehnquist, when Rehnquist died in office due to cancer and as we will discuss in just a few moments, it's pretty unusual on the Supreme Court to see a new justice replace their boss because at one point in John Roberts career, William Rehnquist was his boss. In fact, at the funeral at the Capitol, John Roberts was one of the pallbearers for William Rehnquist's casket. Yeah.
N. Rodgers: I would think that would be more and more common as we go along, simply because of the way the court system is working these days, with clerks being then being hired as justices along the line, this person clerked for Scalia, this person clerked for Ginsburg or this person clerked for Rehnquist and so now we're going to put them in as a circuit justice somewhere and then.
J. Aughenbaugh: On the current court, Ketanji Brown Jackson replaced her former boss Stephen Breyer. Now, Elena Kagan did clerk for Thurgood Marshall, but she did not replace him on the court. But Anthony Kennedy has two former clerks currently on the court, Neil Gorsuch and Brett Kavanaugh.
N. Rodgers: I was trying to remember who Kavanaugh clerked for.
J. Aughenbaugh: Then you mentioned Nia just a few moments ago, Amy Coney Barrett did clerk for Scalia.
N. Rodgers: One could argue to Insular, but yeah.
J. Aughenbaugh: Yes.
N. Rodgers: Because I'm sure that argument has been made by a lot of people that former clerks probably shouldn't be appointed to the court because they will have been influenced one way or another. Because some of them are influenced in the opposite direction, but they were influenced one way or another by their former bosses.
J. Aughenbaugh: It does lead to the criticism that the Supreme Court increasingly has become a modern day old boys network.
N. Rodgers: It's nepotism. Once you get in as a clerk, you're more likely to end up on the court.
J. Aughenbaugh: Yeah.
N. Rodgers: John Roberts?
J. Aughenbaugh: Yes. This is in one of the reasons why sometimes when we talk about the Roberts Court on this podcast, the Roberts Court is probably the most conservative Supreme Court since the Fred Vinson Court from 1946-1953, and the landmark rulings, and when we get to them in the second part of our discussion of the Roberts Court, you will probably hear some audible gasp from Nia.
N. Rodgers: Things I don't like.
J. Aughenbaugh: Yeah.
N. Rodgers: Yeah. Didn't they do Citizens United?
J. Aughenbaugh: Yes.
N. Rodgers: Yeah. See, there's going to be some that I'm going to go.
J. Aughenbaugh: Dobbs v Jackson.
N. Rodgers: Aughie is going to go easy there because there have been some that I agree with too. Like all the courts, it's a mixed bag. Very rarely does a court stay completely, one way or another. Because in part because of the personnel changes and the personalities on the court, there have been some big names, not big names, big personalities on the court where you're like that's a person who really drove the way the court was working.
J. Aughenbaugh: That's a really good point, Nia, because when you talk about the Roberts Court, scholars frequently divide the Roberts Court in the Anthony Kennedy and then post Anthony Kennedy era.
N. Rodgers: It's Kennedy, not Scalia that makes the linchpin.
J. Aughenbaugh: Well, the reason why I mentioned that is listeners recall in our discussion of the Rehnquist Court, I pointed out that a number of scholars identified a cleavage among the conservatives on the Rehnquist Court. You had the strict constructionist movement conservatives like Clarence Thomas and Justice Scalia to a certain extent, Chief Justice Rehnquist. But then you had the more moderate conservatives like Sandra Day O'Connor and Anthony Kennedy and then David Souter basically just ended up, you know, sliding over to the Liberal camp. Now, John Roberts was initially nominated by Bush 43 to replace Sandra Day O'Connor. But when Rehnquist died, Bush pivoted and nominated Roberts to replace Rehnquist and then nominated Sam Alito to replace Sandra Day O'Connor. Anthony Kennedy ends up becoming what Sandra Day O'Connor used to be on the Rehnquist Court. The moderate when the court was divided five to four, she was typically always in the majority. She was always the fifth vote. Anthony Kennedy became that fifth vote in the early years of the Roberts Court until Anthony Kennedy retired during the first Trump administration. Post Anthony Kennedy being on the court, the Roberts Court has become decidedly and more cohesively conservative with some notable exceptions, case exceptions,.
N. Rodgers: The slidey one often seems to be Roberts.
J. Aughenbaugh: Roberts or Brett Kavanaugh. Yeah, Roberts or Brett Kavanaugh.
N. Rodgers: But can I just I know we have to move in and talk about the Roberts Court, but I want to mention that didn't President Bush 43 nominate someone who was wildly unacceptable in Yemen?
J. Aughenbaugh: Yeah.
N. Rodgers: Wasn't there a woman who he tried to nominate to the court, and people were like no, you didn't, no.
J. Aughenbaugh: When Sandra Day O'Connor retired to take care of her ailing husband, Bush 43 nominated his White House legal counsel, Harriet Myers.
N. Rodgers: That's it. That's who I was thinking of.
J. Aughenbaugh: Bush 43 had worked with Harriet Myers when he was governor of Texas. He trusted her explicitly, but she had none of the bona fides that conservatives wanted. Bush 43, in many ways, was like his dad. His dad really trusted President Bush 41, really placed a high value on personal trust, get to know somebody.
N. Rodgers: I know you.
J. Aughenbaugh: I've worked with you. Yeah.
N. Rodgers: Some of that comes out of being head of the CIA, knowing who to trust and who not to trust.
J. Aughenbaugh: Yeah, in Bush 41 had worked in government. For most of it was most of his adult life. Bush 43 chose Harriet Myers, and it wasn't the Democrats in the Senate who objected. In fact, when the Democrats met her on their personal conversations, Because Supreme Court nominees
N. Rodgers: They have to tour the senate. They have to talk to all 100 senators. Yeah.
J. Aughenbaugh: The Democrats liked her. It was the conservatives who were like, she doesn't have the credentials. She doesn't have the bona fides, she's not an active member in the federalist society. She's never served as a judge, so we have next to no paper trail that would suggest that she is a faithful, strict constructionist. Bush had to pull her name, and then he pivoted to John Roberts. Now, John Roberts had been nominated by Bush 41, the father to serve on the DC Circuit Court of Appeals at the tail end of Bush 41's lone term as president, but the Democrats who controlled the Senate never gave him a vote and this rankled conservatives.
N. Rodgers: Yeah.
J. Aughenbaugh: Because as we'll discuss in just a few moments, John Roberts bio is conservatives post Warren Court could not write a better bio than John Roberts bio, biography, but you're right. Harriet Myers was the first choice to replace Andrew Dave O'Connor. Bush 43 was honest. He goes, I'm going to replace the first female, with a woman and I trust her explicitly and conservatives were like, we don't care if you trust her or not. She doesn't have the characteristics we look for, for strict constructionist conservative justice so he pivots, right? Now, the Roberts Court's membership, as Nia listeners pointed out a few moments ago has really been affected by personnel changes. We've already talked about how Roberts got on the court and a few months after he gets on the court, Sam Alito gets confirmed by the Senate to replace Sandra Day O'Connor. During the Obama administration, Justices David Souter and John Paul Stevens retired. Obama picked first Sonia Sotomayor, who was a Federal Appeals Court judge for the Third Circuit and then Elena Kagan. Elena Kagan was Obama's Solicitor General and former dean of Harvard Law School.
N. Rodgers: Did I just tell you that John Paul Stevens I always thought of him as a pirate? I know it's the name, because he was not a pirate in terms of his judicial stance. It was just amusing to me, John Paul Stevens and his black robe swinging across from one ship to another, yeah, because it reminds you of some the colonial powers.
J. Aughenbaugh: The people that they sent to conquer the new world frequently had these 3-4 named.
N. Rodgers: Dashing names. In fact, he also had three first names, John Paul Stevens.
J. Aughenbaugh: Stevens. Yes.
N. Rodgers: We get Sotomayor and we get Elena Kagan. That's 2009, 2010. If think about David Souter and John Paul Stevens. Then you think about Sonia Sotomayor. She takes their of liberal. We're on the liberal side of the court and she walks way over to the left. She's way more liberal. Elena Kagan isn't as liberal as Sonia Sotomayor.
J. Aughenbaugh: Yeah. But the big one that you referenced again, a few moments ago, so for roughly six years, the court's membership was consistent.
N. Rodgers: But then in February, in fact, we got an anniversary coming up. I think we are recording the week of Valentine's Day 2026, Scalia dies, the second week of February in 2016.
J. Aughenbaugh: Ten years.
N. Rodgers: Yeah.
J. Aughenbaugh: It's been 10 years?
N. Rodgers: It's been 10 years.
J. Aughenbaugh: That's crazy.
N. Rodgers: President Obama, who was term limited, so this was his last year of his second term in office. President Obama nominates DC Circuit Court of Appeals Chief Judge Merrick Garland. The Republicans controlled the Senate at the time. The Senate majority leader Mitch McConnell just announces before even Obama makes his pick, the Senate will not take up whoever President Obama nominates to replace Scalia. The reason why was, The vote on the Roberts Court was five to four, and the swing vote was Kennedy. If Obama got to pick Scalia's replacement, then it would swing more reliably liberal.
J. Aughenbaugh: Mitch McConnell spent his entire career?
N. Rodgers: Yes.
J. Aughenbaugh: Focused on the legal system in this country and making it more conservative.
N. Rodgers: Conservative. Yes. Mitch McConnell.
J. Aughenbaugh: Did a brilliant job at that. When you like or hate Mitch McConnell, and mostly I fall into the second category. I mean, I don't wish harm upon him, but by the same token, not one of my favorite people. But whatever you think about politics and politicians and them caring about themselves, Mitch McConnell didn't care about himself. He cared about party. Party first.
N. Rodgers: Yes.
J. Aughenbaugh: He spent 40 years making the legal system in this country more conservative.
N. Rodgers: Conservative. Yes.
J. Aughenbaugh: He didn't care about who got elected to offices in between. I don't think he even cared about who got elected as president. It was about the legal system. It was about the justices, and the judges below that and the appeals courts below that, he was trying to affect a long term conservative art.
N. Rodgers: Because Mitch McConnell understands what many presidents figure out, which is, they may only be in office for a short period of time, but Supreme Court justices can serve 25, 30, 35 years. .
J. Aughenbaugh: The most thing you're going to do as a president is to appoint a Supreme court judge.
N. Rodgers: For justice. That's right. At least one branch of the government, no matter the politics of the day, if you pick the right justices, it means the court will be a particular, if you will, ideological perspective for a long period of time. Mitch McConnell understood that.
J. Aughenbaugh: Yes, he did, and was brilliant at pulling those strings.
N. Rodgers: Yes. The Senate never votes. Heck, Nia, the Senate Judiciary Committee never held hearings. On Merrick Garland.
J. Aughenbaugh: They did Merrick Garland dirty.
N. Rodgers: Sure. Unfortunately, for the Democrats, there were enough key senators who in the past had said, well, if a Republican president gets a Supreme Court vacancy their last year before an election, I would vote not to go ahead and have a confirmation vote.
J. Aughenbaugh: Then you have to do an about face if it's your guy.
N. Rodgers: Yes.
J. Aughenbaugh: Politicians should really learn to shut their faces.
N. Rodgers: Yes. Shut up, Never.
J. Aughenbaugh: Never Don't open your mouth cause stupid stuff keeps falling out.
N. Rodgers: Keeps falling out, yeah.
J. Aughenbaugh: You should just don't say anything.
N. Rodgers: The nuns were fond of always saying to us, Never resist the opportunity to keep your mouth shut.
J. Aughenbaugh: It's good in marriage. It's good in politics. It's good in your job.
N. Rodgers: Job, right.
J. Aughenbaugh: It's good pretty much everywhere.
N. Rodgers: Everywhere.
J. Aughenbaugh: Never missed the opportunity to remain silent. Then we go a little bit. Don't we go couple of years?
N. Rodgers: Hold on. Well, I mean, first of all, we got to go ahead and talk about who eventually did replace Scalia. Trump wins the presidential election in 2016 and appoints Neil Gorsuch who was serving on the 11th Circuit Court of Appeals, which is out in the Mountain West, Colorado and those states, to replace Scalia.
J. Aughenbaugh: I don't think that Donald Trump had any idea how much Gorsuch would come down on the side of Native Americans and Native American tribes.
N. Rodgers: Yeah. I mean, let's face it.
J. Aughenbaugh: But because of his background and because of where he chomped all over his judicial bona fides, he has enormous understanding of those issues in a way that most justices do not.
N. Rodgers: Let's be very clear. Trump when he was running for president outsourced. I mean, one of the criticisms of when Trump was trying to get the Republican Party nomination to run for president Trump was oftentimes criticized for not being conservative enough, and one of the ways, and this was actually pretty much a stroke of political genius by Donald Trump. One of the ways he bolstered his support among conservatives was that he consulted with the federalist society to come up with a list of names he would consider for Supreme Court vacancies. These were all solid rock ribbed Strict constructionists. Trump picks Gorsuch and then two years later, he gets another vacancy, and this one's the biggie. Anthony Kennedy decides to retire, and Trump picks Brett Kavanaugh. Now, as many of our listeners or American listeners recall, Brett Kavanaugh's confirmation process was.
J. Aughenbaugh: Was trial by fire.
N. Rodgers: Fire, yeah. There we are.
J. Aughenbaugh: No one will ever know what happened between those two people in high school in early college. No one will ever know.
N. Rodgers: Yes. For our listeners who don't know, there were allegations that when Brett Kavanaugh was in high school, he committed sexual assault. He denied it vehemently. The allegation was disclosed by Senator Dianne Feinstein after Brett Kavanaugh's confirmation hearings had already begun,.
J. Aughenbaugh: Yeah. It was, and whether you believe him or her, it doesn't matter. I mean, in one sense, it matters morally and ethically, but it doesn't matter in terms of the way that was done was very poor and nobody came out looking good. She didn't look good. He didn't look good, he lost his temper when he was asked about it. There were lots of back and forth. Yeah, Feinstein , I think, did not do that well. I think that was a dark mark against the process against Democratic senators.
N. Rodgers: Then much to Liberals chagrin, In late, no, what was it? Fall of 2020. Presidential election year. Ruth Bader Ginsburg dies. I think after her fourth bout of cancer. Trump, who had a Republican controlled Senate rushed through the nomination of Amy Coney Barrett.
J. Aughenbaugh: Because Trump lost that election.
N. Rodgers: Yes, again, Mitch McConnell did about face. He was just, yeah. I know what I said in 2016 in regards to Barack Obama appointing the replacement for Scalia. But this is politics. I mean, he may do.
J. Aughenbaugh: This is now. I'm a worm, and I will change my public stance because it's more important to me get what I want than for you to like me.
N. Rodgers: Yes.
J. Aughenbaugh: Earning the hatred of many people when he did what he did. Because what he did was wrong. If he had taken an ethical stand and been like, well, I mean.
N. Rodgers: Yeah, I mean, inform he.
J. Aughenbaugh: That he didn't.
N. Rodgers: Yeah.
J. Aughenbaugh: He took a purely.
N. Rodgers: Partisan.
J. Aughenbaugh: Self serving.
N. Rodgers: Yeah, he was partisan. I'm with you on this,
J. Aughenbaugh: Lucy tarnishes his earlier efforts.
N. Rodgers: Yeah, I thought he had a legitimate, if you will, he made a legitimate statement in 2016 by not giving Merrick Garland a vote. Because he basically went ahead and said, I'm following what prominent Democrats in the Senate have previously said when Republican presidents. Had nominations in their last year in office. Now, if he had held to that in 2020, he would have gotten a heck of a lot of respect from me, because it was going to hurt his party. But he didn't, and Amy Coney Barrett gets on the court and then the last, the most recent addition to the Roberts Court is Ketanji Brown Jackson, who Joe Biden appointed to replace Retiring Justice Stephen Breyer.
J. Aughenbaugh: A lot of upheaval in the Roberts Court.
N. Rodgers: Court. Yes.
J. Aughenbaugh: I think everybody's been replaced is that right? Mathematically, has everyone been replaced?
N. Rodgers: Not Clarence Thomas.
J. Aughenbaugh: Thomas is still there. But, I mean, that's a pretty high turnover rate.
N. Rodgers: Remember, listeners, this is in sharp contrast to the fact that there was a 10 year period on the Rehnquist Court.
J. Aughenbaugh: Where nobody left.
N. Rodgers: Nobody.
J. Aughenbaugh: Nobody was there. They were all doing the job, but nobody was retiring or dying or anything.
N. Rodgers: Yes. I mean, you knew it had to come. I mean, just statistically.
J. Aughenbaugh: Mathematically it was going, and Robertson inherited a lot of older people.
N. Rodgers: Yes.
J. Aughenbaugh: Scalia was older. Ginsburg was older. I mean, so that's part of it, at least in Scalia's case, probably not in the greatest of hell.
N. Rodgers: No, I mean, Scalia used to joke that he was the walking poster child for a heart attack.
J. Aughenbaugh: Incredibly creamy, lovely fabulous rich food. It smoked cigars. He drink lots of wine.
N. Rodgers: Yes.
J. Aughenbaugh: He didn't exercise.
N. Rodgers: Yes.
J. Aughenbaugh: There are lots of things that, yeah.
N. Rodgers: He was a workaholic,
J. Aughenbaugh: He got two hours of sleep at night. Come on.
N. Rodgers: Yeah. I'm like, I got your back there, dude. I know what you're talking about.
J. Aughenbaugh: We're also describing, Aughie when describe this.
N. Rodgers: Let's talk about John Roberts bio. So John Roberts was born 1955.
J. Aughenbaugh: John Glover Roberts.
N. Rodgers: Yes. John Glover. Yes.
J. Aughenbaugh: John Glover Roberts Junior.
N. Rodgers: Yeah. We love.
J. Aughenbaugh: We do love rename names.
N. Rodgers: Yes.
J. Aughenbaugh: If we can get them.
N. Rodgers: Yes. He was born in 1955, and as we discussed, as the Roberts court has progressed, he has gone from being, one of the most conservative to more of a moderate conservative voice. He is and I love this description, and I put this in my research notes, listeners. He's an institutionalist.
J. Aughenbaugh: He cares way more about the court. As large the court than he does any given case that comes before the court.
N. Rodgers: It's really difficult to go ahead and call him a partisan when he is not nearly. As ideologically faithful to being a conservative as some of his colleagues, right?
J. Aughenbaugh: Right. His concern is the reputation of the court.
N. Rodgers: Yes. We will touch upon that when we get to the judicial philosophy of the Roberts Court. He was born in Buffalo, New York, a Catholic. His family moved to Northwest Indiana. His father was an electrical engineer for the Bethlehem Steel Corporation. They moved to Long Beach, Indiana, when his dad became a manager of a new steel plant. In a little town that I actually had to look up, Burns Harbor, Indiana. I was just like, I don't know where Burns. Yes.
J. Aughenbaugh: Indiana has a harbor? Anyway. Yeah, I know that makes sense off the lake. It's got to be off the lake.
N. Rodgers: He attended a Catholic school, a Catholic boarding school in La Porte, Indiana. He captained the school's football team, participated in track and field, and he was a regional district champion in wrestling.
N. Rodgers: He was a physical kid.
J. Aughenbaugh: He was also a Renaissance person because he also participated in choir and drama, and he was the co-editor of the school newspaper.
N. Rodgers: He was that kid.
J. Aughenbaugh: He was that kid.
N. Rodgers: He did all the things.
J. Aughenbaugh: He graduated valedictorian of his high school class.
N. Rodgers: Of course he did. Was he also the class president?
J. Aughenbaugh: No, I don't think he was.
N. Rodgers: It's because he didn't want it.
J. Aughenbaugh: He probably didn't want it because if he wanted it, come on now. With that resume, come on. Goes to Harvard, and his major was history. Get this, listeners, he graduates from Harvard in three years.
N. Rodgers: Because he enters as a sophomore because of all the advanced-level stuff he had done in high school, so he was already doing college in high school.
J. Aughenbaugh: Yes.
N. Rodgers: He graduates in three years from Harvard. Not like Bob's your uncle's school down the street, but Harvard. This is a man of high intelligence.
J. Aughenbaugh: Yes, and certainly achievement. His work ethic has never been questioned, in contrast to some of the other Chief Justices we described.
N. Rodgers: They were adequate. You're like, wow.
J. Aughenbaugh: They were mediocre.
N. Rodgers: Dammed with fake praise.
J. Aughenbaugh: What was it? We had back-to-back Chief Justices, Earl Warren and Warren Burger, neither of whom were academic standouts. But, come on. They accomplished the highest position on the highest court. But nevertheless, their academic achievements pale in comparison to their successors, William Rehnquist and then John Roberts. Roberts decides to go to Harvard Law. He was the editor of the Harvard Law Review.
N. Rodgers: Of course he was. Anything else would have been a failure.
J. Aughenbaugh: He gets out of law school, gets a clerkship with one of the most prominent federal Appeals Court judges in the United States, Henry Friendly, on the Third Circuit Court of Appeals.
N. Rodgers: Judge Friendly?
J. Aughenbaugh: Judge Friendly, yes.
N. Rodgers: That's hilarious.
J. Aughenbaugh: Yes.
N. Rodgers: Was he?
J. Aughenbaugh: No.
N. Rodgers: He's not friendly in the least.
J. Aughenbaugh: No, but he did produce a large number of really talented lawyers and judges.
N. Rodgers: He was hard on his clerks.
J. Aughenbaugh: So much so that William Rehnquist hired Roberts to be a clerk. He clerks for Rehnquist and then holds positions in the Department of Justice from 1989-1993.
N. Rodgers: He's 34 years old when he's working in the Department of Justice.
J. Aughenbaugh: Yes. Prominent position.
N. Rodgers: After having clerked for William Rehnquist. That's some chops right there. He's got chops.
J. Aughenbaugh: Yes. Now, Bush 41 nominates him to serve on the DC Circuit Court of Appeals. The Democrats in the Senate never act on as a nomination, so he goes into private practice. In private practice, he argues 39 cases before the Supreme Court and wins two-thirds of them. Two-thirds. That's a success ratio that lawyers who do a lot of cases in front of the Supreme Court, they would kill for.
N. Rodgers: Because mostly what you do when you go before the Supreme Court is hope that they do not humiliate you to the point where you can't go home anymore.
J. Aughenbaugh: Yes.
N. Rodgers: Where you have to change your name and move into a witness protection program. That's what you want at the end of a case with them is not to have to do that, to say I won outright, and 30 of your 40 cases is a pretty big deal.
J. Aughenbaugh: He does this for about 10 years, and he's making serious money.
N. Rodgers: Anybody who argues in front of the Supreme Court and wins with that level can charge whatever they want because corporations will pay it.
J. Aughenbaugh: Corporations, individuals.
N. Rodgers: Interest groups.
J. Aughenbaugh: He did not discriminate. He represented Liberal groups, Conservative groups, businesses.
N. Rodgers: If he believed in the cause, he was there.
J. Aughenbaugh: If he thought he could win the case, he would take it, and he won a lot. He does this for 10 years. In 2003, he agrees to be nominated to the DC Circuit Court of Appeals for a second time by Bush's son, the second President Bush. He's on that court for two years, and that's when Sandra Day O'Connor dies. He gets nominated after Harriet Myers' nomination gets pulled. Then Chief Justice Rehnquist dies. Bush Pivots says, I want to nominate Roberts to be the next Chief Justice. Roberts was confirmed by a 78-22 vote. Listeners take note of that because you don't see that high of a number of senators voting for a president. No.
N. Rodgers: Ninety-eight, two, I think, was Ginsburg. It used to be that it was pretty high. Now, it's much more partisan, 51-49. It's that, so 78-22 is a pretty good vote. He's what, 12 when this happens?
J. Aughenbaugh: Fifty. He becomes the second youngest Chief Justice. The only younger Chief Justice in the history of the Supreme Court was John Marshall.
N. Rodgers: He's 50, and he will live to be at least 80 with his health care and the fact that he's in actually pretty good health anyway, other than falling over.
J. Aughenbaugh: He's had a couple of seizures where he's fallen and has hit his head, but caused no concussions, no head damage. Listeners, remember, John Marshall got picked at 46 when the life expectancy was about 18 years less than it is today.
N. Rodgers: Sixty. He was expecting to live to. But I have a question.
J. Aughenbaugh: Fifty.
N. Rodgers: Fifty. He's so young when he does that. In your opinion, was there a reason that they didn't pull from within the court because they've pulled from within the court before to be the chief? Why wouldn't they choose Thomas to be the chief?
J. Aughenbaugh: Clarence Thomas has never indicated that he likes the administrative work. Scalia was considered too old.
N. Rodgers: If he was too old, then Thomas was too old.
J. Aughenbaugh: No, Thomas was significantly younger. Thomas got on the Supreme Court in his early 40s, so he would have only been in his mid-50s. But Thomas had made it very clear he had no desire.
N. Rodgers: I see.
J. Aughenbaugh: He doesn't want the administrative headaches of being the Chief Justice. He certainly wasn't going to pick O'Connor because O'Connor would not have gotten the support of the Republicans in the Senate because she kept on voting in favor of a woman's right to choose. Anthony Kennedy had shown an occasional, shall we say, wandering dalliance with the Liberals, again, particularly with a woman's right to choose. Bush would have lost a lot of significant Republicans in the Senate because that was a litmus test.
N. Rodgers: He goes outside, and he gets a guy who's clearly an overachiever, who's clearly very bright.
J. Aughenbaugh: He has already been vetted by the Reagan administration, his father's administration, and he's young.
N. Rodgers: Because he's going to make a change on the court that's going to last for 30, 35, or 40 years.
J. Aughenbaugh: That's right.
N. Rodgers: Presidents, I guess, want to do that hump. They want their legacy to last as long as it can. Whatever else you say about Donald Trump, he chose young people. Brett Kavanaugh is young. Amy Coney Barrett is young. Biden chose Ketanji Brown Jackson is young.
J. Aughenbaugh: Yes. These days of appointing somebody as a reward for a long legal career.
N. Rodgers: You're 70, and you've done great work, and we're going to put you on for the last five years of your career. Not happening anymore.
J. Aughenbaugh: No. They want somebody who has enough of a track record to where they feel fairly confident this is what they're going to do as a judge, but not too much experience because we want them on the court for 25, 30 years. Again, if you think about it, listeners, that means that the judicial branch, this justice will have lasted for at minimum five presidents or four presidents.
N. Rodgers: That's crazy.
J. Aughenbaugh: Four presidents. Three to four presidents. Think about Clarence Thomas.
N. Rodgers: If everybody is a double service, then you've got 28, 29 years.
J. Aughenbaugh: Clarence Thomas, if he makes it through the second Trump administration, will have served Bush 41, Bill Clinton, Bush 43, Barack Obama, both Trump terms, and Joe Biden, six presidents.
N. Rodgers: Seven terms.
J. Aughenbaugh: Yes.
N. Rodgers: Yikes. What's our general judicial philosophy? Can I tell you what I think it is?
J. Aughenbaugh: Go ahead.
N. Rodgers: I think his general philosophy is Conservative unless people are going to hate the court, in which case, maybe I will shift slightly to less Conservative and more middle ground.
J. Aughenbaugh: I'm going to offer a modification of what you just said. Now, has John Roberts ever been the most Conservative member of his court? No.
N. Rodgers: No. Justice Thomas never says, Hold my beer. Never. Justice Thomas keeps his beer to himself.
J. Aughenbaugh: Remember, listeners, a good way to think of the Roberts court is Anthony Kennedy and post-Anthony Kennedy. When Anthony Kennedy was on the court, Anthony Kennedy was the most moderate Conservative. The strongest Conservatives were Clarence Thomas and Scalia. Then you may have gotten to John Roberts. Alito comes on pretty quickly. Roberts and Alito voted very consistently together while Anthony Kennedy was still on the court. But after Anthony Kennedy retires in the First Trump administration, and Trump gets to go ahead and appoint Gorsuch, Kavanaugh, and Coney Barrett. Now the most Conservative are Thomas, Alito, Gorsuch, and now you've got, and you and I've discussed this on this podcast on the Roberts court, three. You've got three very consistent Conservatives, three very consistent Liberals, and then you've got three Conservatives. Let's be very clear. They're Conservative.
N. Rodgers: He's never going to go all wild on the Liberals' side. Neither, for that matter, is Kavanaugh or Coney Barrett. They're not.
J. Aughenbaugh: They are more incremental.
N. Rodgers: Especially Coney Barrett. She never met an increment she didn't like.
J. Aughenbaugh: Yes. I think that the media oftentimes gets it wrong by saying that the six Conservatives always vote the same. They don't. The statistics don't lie. Thomas and Alito are like this. Gorsuch is just a couple of clicks to the left of them. But then you got a pretty significant gap, and then you get Coney Barrett, Kavanaugh, and John Roberts.
N. Rodgers: Still on the right.
J. Aughenbaugh: They're on the right.
N. Rodgers: The thing is, to me, the Liberals aren't a total block either, because occasionally Elena Kagan gets picked off because Sonia Sotomayor and Brown Jackson are way to the left. Elena Kagan is not as far to the left because sometimes she's even more centrist.
J. Aughenbaugh: Kagan and Roberts are strategic. They know that the most important number on the Supreme Court is five.
J. Aughenbaugh: Kagan will go ahead and moderate, her reasoning, her logic, if she thinks she can go ahead and pick off one or two of Kavanagh Roberts and Coney Barrett. Damare doesn't do that. Clarence Thomas doesn't do that on the right.
N. Rodgers: They're not bending.
J. Aughenbaugh: They're not going to compromise to go ahead and get the five.
N. Rodgers: Aren't they buddies?
J. Aughenbaugh: For years, they sat beside one another on the bench. Sotomayor has talked about how the nicest colleague she's ever worked with is Clarence Thomas.
N. Rodgers: It's like Scalia and Ginsburg. We're very close.
J. Aughenbaugh: Yes.
N. Rodgers: That's judicially statism between.
J. Aughenbaugh: You could drive an 18 wheeler.
N. Rodgers: Sideways between their political .
J. Aughenbaugh: The other thing to remember about the Roberts Court, and Nia, you and I've talked about this when we do our Summer Scots, and we get to the episode about the statistics. In the last three Roberts terms, the Supreme Court has voted unanimous, 9-0 or 8-1 in well over 45% of the cases.
N. Rodgers: This idea that somehow the court is wildly divided is a press made up thing. It's totally media outlets trying to make drama where there isn't any.
J. Aughenbaugh: Now, I will say this about Roberts, Roberts is strategic, Roberts will go ahead and try to convince his colleagues to go for incremental change, which he then can go ahead and use, as precedent for future cases because Roberts, the institutionalist, is like, if we make small changes, which people can get used to, then when we do, basically go ahead and say, for instance, I'm going to give you an example. A couple years ago, a major administrative law case, Loper Bright, The Supreme Court went ahead and said, we're no longer going to defer to agency interpretations of vague laws written by Congress.
N. Rodgers: The Chevron test.
J. Aughenbaugh: The Chevron test, Now, if you had been following the Roberts Court, they had been incrementally picking apart the Chevron test, so that when it actually happened.
N. Rodgers: Shouldn't have been a surprise to anybody.
J. Aughenbaugh: But it shouldn't have been a surprise. I've been seeing it when I've taught administrative law. I'm like, the Roberts Court has been dumbing. You would have to have been [inaudible].
N. Rodgers: He likes that. He's like [inaudible].
J. Aughenbaugh: Yes.
N. Rodgers: He doesn't want to go Yaaka Hooty and jump from one thing to another because one, that will make people hate the court and trust the court.
J. Aughenbaugh: Yes.
N. Rodgers: He is trying to avoid more than anything. But also that incremental those incremental changes send a message to the lower courts. Saying, if you go incremental, we will likely uphold. You go backrupt we won't.
J. Aughenbaugh: Yes. That's why, for instance, the Ninth Circuit Court of Appeals and the Fifth Circuit Court of Appeals, one liberal, the other one conservative, frequently get overruled by the Roberts Court.
N. Rodgers: To say, go the Wahooti Lead way instead of the poo. You're saying his judicial philosophy is itching along from one side to another.
J. Aughenbaugh: For our listeners who might follow boxing, John Roberts is a body puncher, He just keeps on pounding away at your body and then eventually you just go ahead and your opponent goes ahead and says, I've had enough of that. I'm tapping out.
N. Rodgers: He's totally okay with getting a referee.
J. Aughenbaugh: A technical knockout.
N. Rodgers: A technical knockout. Thank you. A TKO instead of just a straight out.
J. Aughenbaugh: Knockout.
N. Rodgers: Pounding on the grab.
J. Aughenbaugh: Whereas his colleagues, on the left, Sonia Sotomayor and on the right, Clarence Thomas? no, they swing to knock you out. Another sports metaphor, John Roberts is a singles and doubles hitter. He hardly ever swings for the fences, Clarence Thomas, Sam Alito, Sonia Sotomayor, Ketanji Brown Jackson, they swing for the fences.
N. Rodgers: They go big.
J. Aughenbaugh: Yes.
N. Rodgers: They believe deeply in go big or go home. Go home.
J. Aughenbaugh: Exactly.
N. Rodgers: John Roberts is like a bunt between first and second gets me on first. That's all I need. I can steal second.
J. Aughenbaugh: Come home on a single, and I've still scored my run. It's going to take point.
N. Rodgers: Exactly.
J. Aughenbaugh: It's going to take a little bit longer, but nobody's going to go ahead and say, I can't believe he swung for the fences. That's just not his temperament.
N. Rodgers: Then he doesn't think you win if you do that. He doesn't think that in the long term, what he sees that is I think when he does his incremental thing, it's much harder. When a precedent is set on a big leap, it is easier for that precedent to be overturned because you can go back and say the argument was flawed. The logic was slawed. Lets see Roe v. Wade. It was a big leap and it was overturned because of the big leapiness of it. Whereas when you get smaller increments, it's harder to ignore that precedent. It's harder to overturn that.
J. Aughenbaugh: It allows somebody like John Roberts to go ahead and say, hey, we're not breaking new ground here. As we said five years ago, in case, this is what the law means. We're only now extending it, just a little bit further. No news here, we ain't doing anything groundbreaking.
N. Rodgers: Hoping to see, nothing to see.
J. Aughenbaugh: You can trust us. To wrap up this episode because we're going to have to do a two partner with the Roberts Court. To wrap this up, again, a court with some significant personnel changes, led by probably if there was a person who was educated and groomed to be a Supreme Court justice, if not chief Justice John Roberts. In our next episode, listeners, we're going to look at the landmark rulings. There's a reason why we're splitting up the Roberts Court into two. It's not because of recency bias. It's the fact that the Roberts Court has handed down, some really important Supreme Court rulings, that are having significant impact in American life, even today. That's the reason why we're breaking it up.
N. Rodgers: We mentioned there's something in your notes that I did want to mention before we wrap up this episode and go on to the cases. You say some commentators have also noted that Roberts uses his vote in high profile cases to achieve a facially neutral result that sets up for larger conservative rulings in the future. I think that what people miss about Roberts is that he is often play like Mitch McConnell, he is often playing the long game.
J. Aughenbaugh: Long game. Yes.
N. Rodgers: I want this tiny maneuver now and another tiny maneuver in a couple of years and then as we get along, we will get what we want or we will get a more conservative whatever rather than, again, it comes back to that incremental versus Leap, but it also shows that he has a lot of insight into where the court will go over the next few years, like an arc of time. He doesn't see it as these are cases individually, but these are cases that build.
J. Aughenbaugh: There is a discipline Nia in political science known as institutionalism. Institutionalism talks about how institutions are created and how they evolve and change over time. Somebody who's an institutionalist does not argue that you should destroy or scrap an institution that has existed for years. Instead, you make small changes to respond to changing conditions in society. Why? Because that helps preserve and maintain the public support for that governing institution. You see that with Mitch McConnell. You saw that with a Harry Reid, for instance, when he was the Senate Majority leader. You saw that, with John Boehner when he was speaker of the House.
N. Rodgers: For 100 years.
J. Aughenbaugh: Before he was speaker, he was the chair of important committees. You see this with John Roberts, who's like, for the American public to have faith in the Supreme Court, we can't keep on overturning precedents that the public has grown to rely on. We have to make small changes. We're going to talk about this, and I want us to come back to that theme, and I'm glad you brought it up, Nia, when we look at Dobbs v. Jackson because John Roberts vote in that case, and his concurring opinion, is a really good example of an institutionalist vote in opinion. Because he didn't agree with either Alito's majority opinion. Or the opinion, the group dissent written by the liberals. Again, we'll leave it to you all, listeners as to whether or not you think his approach is a good one or a bad one. But I will say this. Being the Chief Justice of the current Supreme Court has to be extremely difficult when you have, such strong, smart, uncompromising people on the extreme, on the ideological extremes.
N. Rodgers: I would imagine that there are days when he says, What have I done?
J. Aughenbaugh: Yes.
N. Rodgers: Also I imagine there are days when he thinks this is aging him way faster than he know, if I was going to be aging this fast, I might as well have been president. I'm sure that there are days and I'm also sure that there are days when he throws things in his office when he's like, are you kidding me? I can't get any gift either of these extremes.
J. Aughenbaugh: I can only imagine what his conversations are like with his wife when he gets home from the Supreme Court chambers, and they're having a pre-dinner cocktail. She says, honey, how was your day? He goes, let me tell you about what so and so said during conference, and 20 minutes later, he gets done talking, and she goes, so it was that good.
N. Rodgers: I imagine either that or she's learned not to ask. You know what I mean?
J. Aughenbaugh: Yes.
N. Rodgers: But his wife, by the way, her name is Jan Sullivan.
J. Aughenbaugh: Yes.
N. Rodgers: They've been married since 1996. They've been married, and I think she's a few years younger than he is. But I'm sure that she tries to do that thing where she's like, should I ask or should I just not ask, is just something I don't want to hear the answer to. But anyway, I imagine it must be frustrating for him to have to slow down for some of his colleagues in terms of not slow down. That's not the right word. But to try to pull them back from the extreme, I'm sure what he goes to them and says is, I appreciate that you feel this strongly, but we can't just do this. There has to be. Anyway, I wouldn't be J Rob. I wouldn't be J Rob on the court right now for love no money, especially considering what Donald Trump is putting him through, which we are going to be talking about in the next episode. As we say in the South, bless his heart. In this instance, we don't mean it sarcastically. We mean it seriously.
J. Aughenbaugh: Sometimes Nia students will say, Aughie, won't you love to be chief justice? I'm like, not on the current court. Nope. Not a chance.
N. Rodgers: I don't even want to be a clerk on the current court lo the chief Justice.
J. Aughenbaugh: You imagine having him to draft some of those opinions? Anyways, we'll talk about this in the next episode.
N. Rodgers: The social stuff you have to dodge.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Cool. Thank you. Aughie. I'll see you in the next episode.
J. Aughenbaugh: Sounds good.
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