The First Justice Roberts

President Bush’s nomination of John G. Roberts Jr. to the Supreme Court comes, as it happens, on the 50th anniversary of the death of the Owen J. Roberts, a Supreme Court justice who is almost completely forgotten. The story of Roberts I illustrates the difficulty of predicting a nominee’s tendencies, a fairly well-worn point. But it also shows that few Supreme Court justices prove as important as we believe they’ll be at the time of nomination.

The first Justice Roberts had been a corporate lawyer in Philadelphia who gained some fame as a special prosecutor following the Teapot Dome scandals. President Hoover settled on him as a safe choice after his first choice, John L. Parker, was voted down by a Senate that was more heavily Republican than today’s senate. (Mr. Parker had made some racist remarks on the bench.)

The first big case after Justice Roberts’ confirmation was Near v. Minnesota, which involved a state law that allowed the state to enjoin publication of “malicious, scandalous and defamatory newspaper [or] magazine” articles. The case sounds like a no-brainer, and the Supreme Court did strike down the law. But the vote was 5-to-4, with Justice Roberts siding with Chief Justice Charles Evans Hughes, also a Hoover-appointee. If the term “swing-vote” had been invented yet, Justice Roberts would have been deemed the swinger.

Justice Roberts did join the majority in the 1935 Schechter Poultry case, in which the Supreme Court held invalid a federal law that empowered the president to enact labor codes regulating the wages, hours and minimum wages of industrial employees. But the vote in that case was 9-0, and it did not prevent such regulations per se, but said Congress could not delegate regulatory power to the executive without some reasonably clear guidelines. Congress soon reworked the legislation in a constitutionally acceptable manner.

In 1937, Justice Roberts joined the majority in N.L.R.B. v. Jones & Laughlin Steel Corp., a case where the court upheld the National Labor Relations Act. He was again the swing vote in the sense that he was one of five necessary to uphold the legislation. He joined another 5-4 majority in upholding validity of the federal payroll tax imposed as part of the Social Security Act (Steward Machine Company v. Davis). He sided again with the chief justice in another 5-4 vote upholding the validity of state minimum wage laws (West Coast Hotel Co. v. Parrish).

Justice Robert’s proudest moment on the high court may have been in dissent. If Brown v. Board of Education is the case lawyers and law students use to cast the Supreme Court in a heroic light, Korematsu v. United States is its polar opposite. In that case, the justices greenlighted the placing of Japanese-Americans, U.S. citizens, in internment camps. Of course, the decision came in time of a world war. But three justices voted ‘no,’ and Justice Roberts was one of the three.

No one remembers Justice Roberts today. He was not a leader on the court; his dissents don’t ring out. No one has written his biography. There is a school district in Pennsylvania named after him, but that’s about it.

Still, he serves as a reminder. First, as is often remarked, Supreme Court justices are often surprises. And second, in the long run, justices rarely prove as consequential as they first seem.