Roberts Was Influenced by Critics of the Warren Court

In the 1950s and '60s, the Supreme Court looked at the country's problems and decided, time and again, that the federal judiciary should reform society and establish individual rights. Even today, long after the death of the chief justice, Earl Warren, who led the court during that period, and long after a majority of the court has been named by Republican presidents who opposed the Warren Court's innovations, the court continues to recognize such Warren-like concepts as a "fundamental right" to privacy that protects abortion and private consensual homosexual conduct.

The Warren revolution remains a model for many people of how the court must act as a guarantor of individual and minority rights. Roberts, however, was one of those who recoiled from the Warren Court's activism.

Roberts grew up in a mostly white Indiana suburb where his father's steel company was touched by federal court battles over affirmative action, and he attended Harvard College and Harvard Law School as Boston was grappling, sometimes violently, with court-ordered school desegregation.

But his gravitation to concepts of judicial restraint probably reflected the natural bent of his orderly, traditionalist mind, rather than the controversies swirling outside the academic setting in which he spent most of the 1970s.

Asked by a senator in 2003 to name the legal text that most influenced him, Roberts chose the 1973 edition of Hart & Wechsler's "The Federal Courts and the Federal System," a 1,657-page legal textbook used in Harvard's class on federal courts. It has always been "within reach of my desk" since law school, he told the Senate. And, indeed, he has often cited it in his writings since Cambridge.

Unknown to most Americans, the Hart & Wechsler volume is instantly recognizable to law professors as an exhaustive, sophisticated -- and deeply skeptical -- treatment of the Warren Court revolution.

It is considered a virtual Bible of a postwar legal movement known as the Legal Process School, especially influential at Harvard, whose leading figures were liberals and conservatives who professed concern not so much for the results the court was reaching as for the damage its overreaching might do to the judiciary's own legitimacy.

Roberts's choice of the book is "extremely revealing," said Cass Sunstein, a professor of law at the University of Chicago.

For the Legal Process School, it was a given that "judges in solving legal problems are not doing the same thing that legislators are doing in solving political problems," says Todd Rakoff, a professor of law at Harvard.

The strength of Legal Process was its insistence that courts adhere to neutral principles, that they "should not become champions of particular causes or litigants," as Dennis J. Hutchinson, a professor of law at the University of Chicago, puts it.

Yet Legal Process has lost influence in more recent years, under attack from a new generation of law professors who fault it for ignoring the political power relationships embedded in the law -- that its insistence on identifying neutral principles is unrealistic.

"The question about legal process," Rakoff says, "is 'Is it true that there are legal answers that aren't political answers?' "