Famed constitutional lawyer Miguel Estrada gently pushed back today on the suggestion that Supreme Court Chief Justice John Roberts skews his jurisprudence to protect the institutional standing of the court rather than applying the law based on neutral and consistent standards.
Still, Estrada acknowledged sometimes being “puzzled” by some of Roberts’s court opinions, finding “some of [Roberts’s approach] understandable, some of it not,” while Estrada thought Roberts’s controversial 2012 decision saving Obamacare was “inexplicable.”
Estrada was speaking via Zoom conference to hundreds of virtual attendees at a review, sponsored by the Federalist Society, of the recently completed Supreme Court term.
“I don’t know that it is helpful to describe a motivation [to Roberts],” said the celebrated attorney. “I think he may be looking at a case as to how it’s going to fit into a particular area of law. It is not apparent to me as to how it fits, [though] … I don’t know that I am in a position to analyze why he ruled as he did.”
Answering a follow-up question as to whether he thinks Roberts would take the same legal positions if he were an associate justice, without the same alleged pressures to safeguard institutional standing as he does as chief justice, Estrada again gave Roberts the benefit of the doubt. Even if Roberts were an associate justice, Estrada said, “I have to believe he would feel the same sense of responsibility about what the court is doing,” and thus would probably rule the same.
The questions come amid widespread conservative consternation about Roberts’s longstanding tendency to seek the narrowest ruling possible on key cases and his increasing tendency to side with the more liberal justices on blockbuster cases on which conservatives had pinned high hopes. Two explanatory theories are making the rounds in conservative legal circles, one (reflected in the first question above) that Roberts is trying politically to position the court in a stronger institutional position, the other that he is a “judicial minimalist” always seeking to avoid societally “disruptive” decisions where possible.
In Estrada’s Zoom answers and in his previous 90-minute tour of the whole gamut of the high court’s 2019-20 decisions, Estrada came across as measured, level-headed, and brilliant, with near-encyclopedic knowledge and an ability to summarize complicated subjects concisely and quite understandably. His demeanor was not that of a conservative firebrand once decried by the Left, but as a careful, only vaguely center-right, scholar of the law.
Listening to him expound on the court, a fair-minded analyst would once again lament the unprecedented and underhanded way Senate Democrats blocked Estrada’s 2001-2003 nomination to the U.S. Court of Appeals for the D.C. Circuit. Estrada became the first judicial nominee in U.S. history to be blocked permanently from confirmation by a filibuster despite enjoying the support of a majority of senators. Leaked Democratic memos, plus later explanations of those memos by Democratic senators, made clear that a major motivation for the filibuster was that as a “Latino,” he would be “politically dangerous” to Democrats because he later could become an “attractive candidate” for the Supreme Court.
In sum, Democrats opposed Estrada because of his ethnicity. Oddly enough, indications are that had he made it to the Supreme Court in place of, perhaps, Samuel Alito, he would be joining Roberts nearer the court’s middle rather than as the more predictably conservative (jurisprudentially speaking) Alito.
Either way, Estrada’s impressively contemplative dignity would have made him a credit to the court, and to the country.
