At the outset, after a brief setup focused on an oral argument, Toobin sets forth his thesis that the Chief Justice is far more conservative than Democratic Senators had any reason to expect. Toobin writes:

Roberts's hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. "Judges are like umpires," Roberts said at the time. "Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire." His jurisprudence as Chief Justice, Roberts said, would be characterized by "modesty and humility." After four years on the Court, however, Roberts's record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

There are several problems with this passage. First, there is no inherent conflict between Roberts' stated claim that he aspired to be an "umpire" who applies rather than makes the rules, and his fairly conservative record on the Court. Unlike some of his fellow conservatives, the Chief Justice has shown relatively little inclination to create or expand new constitutional rules that would preclude legislatures from adopting desired policy measures. There are some exceptions, of course, but thus far the Chief Justice's jurisprudence could fairly be described as conservative minimalism. And although his approach is quite conservative, there is no evidence that the Chief Justice is doing anything other than calling the law in each case as he sees it.

Toobin attempts to draw a distinction between judicial conservatism, on the one hand, and judicial modesty and humility, on the other. This is a false dichotomy. Judicial modesty need not be moderate (although it can be). To the contrary, in many contexts, judicial modesty -- the idea that courts do not have all the answers, should defer more to the political branches and, where possible, should remove themselves from contentious policy debates -- is a quite conservative position. This sort of judicial modesty -- a modern-day equivalent of Alexander Bickel's "passive virtues" -- is the sort of thing folks on the Left excoriate all the time as "closing the courthouse door." Setting aside the legal merits of this view in any given case, there is no reason we should expect a "humble" judge to be particularly "moderate." Further, if Toobin wishes to challenge Roberts' claim of judicial "modesty," he would do better to focus on areas in which Roberts' opinions are less humble and modest, as in Parents Involved, rather than the overall conservatism of Roberts' jurisprudence.

It is also not true that "in every major case" Roberts has sided with "existing power relationships." To substantiate this claim, Toobin ignores cases in which the Chief Justice has vindicated the rights of individuals challenging the government. So, in Heller he favored the individual asserting a fundamental right against the state, in Rapanos he favored the landowner defendants against the government regulators and prosecutors, and in two campaign finance cases he supported those asserting their First Amendment rights over the government. Chief Justice Roberts may not challenge governmental (or other) authority as much as I would like, but that doesn't substantiate Toobin's broader claim that he inevitably votes to uphold "existing power relationships" in important cases.

Later on, Toobin writes:

The Chief Justice has not yet embraced one particular judicial principle as his special interest—in the way that Rehnquist chose federalism and states' rights—but Roberts is clearly moved by the subject of race, as illustrated by his combative performance during the Texas and New Haven arguments. His concerns reflect the views that prevailed at the Reagan White House: that the government should ignore historical or even continuing inequities and never recognize or reward individuals on the basis of race.

Toobin may be correct that Roberts has a particular interest in race cases. If so, we may see soon enough. Yet there is also reason to believe Roberts has taken a special interest in another area: standing. Roberts has authored an opinion in every major standing case since joining the Court as Chief Justice save two (Hein v. Freedom from Religion Foundation and Summers v. Earth Island Institute). He wrote the majority opinion in Cuno v. Daimler Chrysler and penned spirited dissents in Sprint v. APCC Services and Massachusetts v. EPA. He also addressed the standing question in his Parents Involved plurality and his opinions for the Court in Rumsfeld v. FAIR and Plains Commerce Bank v. Long Family Land and Cattle Company. I also suspect he wrote the Court's per curiam opinion in another standing case, Lance v. Coffman. Standing is also one of the few issues Roberts wrote about publicly before joining the Court, authoring a defense of Lujan v. Defenders of Wildlife in the Duke Law Journal. From this, I think it's fair to conclude that standing is an issue of special interest. His view of standing also simultaneously emphasizes his judicial conservatism (insofar as limited standing is viewed as a conservative position) and his judicial modesty (insofar as one sign of judicial modesty is a desire to have more issues resolved outside of the courts).

I have a few other quibbles with the piece, such as his description of Leegin Creative Leather Products v. PSKS as a case in which "the Justices overturned a ninety-six-year-old precedent in antitrust law and thus made it harder to prove collusion by corporations," and that the now-infamous Ledbetter decision imposed a "seemingly insurmountable new burdens on plaintiffs in employment-discrimination lawsuits." I'd question both accounts.

The Leegin decision held that resale price maintenance agreements would no longer be subject to a per se rule, thereby eliminating a populist-era relic from the Court's contemporary antitrust jurisprudence. The "96-year-old precedent," Dr. Miles, was an outlier. Leegin only "made it harder to prove collusion" if by that one means that requiring any proof that a minimum RPM agreement harms consumer welfare is making it "harder to prove." Under the old rule, such agreements were illegal even if they enhanced consumer welfare, and we don't usually apply the label "collusion" to agreements that enhance consumer welfare.

As for Ledbetter, Justice Alito's majority opinion explicitly refused to foreclose the possibility of applying a "discovery rule" to Title VII claims. Whether to apply such a rule didn't matter in Ledbetter's case because, as she acknowledged, she did not file suit when first learning of the pay disparity; instead she waited several years. Moreover, the decision did nothing to foreclose Equal Pay Act claims. Even if one thinks the decision was wrong, it's ridiculous to claim it erected "seemingly insurmountable new burdens" on employment discrimination plaintiffs.

Toobin's article is emblematic of an emerging meme that John Roberts is far more conservative than anyone imagined when he was nominated. This is silly. John Roberts confirmation to the U.S. Court of Appeals for the D.C. Circuit was blocked in 1992 and stalled in 2001 precisely because Senate Democrats and liberal interest groups knew he was likely to become a conservative jurist. For the same reason, 22 Senators voted against his confirmation (including some who now implausibly claim they were misled; presumably if they knew how conservative Roberts would be, they would have found a way to vote against him twice).

Roberts was confirmed despite the clear indicia of his ideological leanings because he was among the most eminent appellate advocates of his generation, a man of impeccable credentials and obvious brilliance who ran intellectual circles around his Senate inquisitors. It also did not hurt that he had avoided making political enemies or making inflammatory statements and was replacing another conservative, his mentor William Rehnquist. Had there been a way to stop him at an acceptable political cost, Senate Democrats and their interest group allies would have.

As Chief Justice, John Roberts has been precisely what one should have expected: a conservative judicial minimalist who would like to reduce the Court's role in the nation's political life. While his confirmation has not produced a notably conservative court, his overall conservative approach to the law has not been a surprise.