1. Roberts as an "Advocate for the Right"

When John Roberts was first nominated to the Supreme Court, the New York Times ran a story describing him as "An Advocate for the Right", explaining how during his service in the Reagan Administration he was often more conservative than his elders.  A review of his legal memos, the Times reported, showed that, among many other tell-tale signs of dyed-in-the-woolness, he consistently "took the side of prosecutors over criminal defendants."  

Look at the Times' choice of words.  The two sides confronting one another across the left-right divide aren't victimizers and victims, the dangerous and the vulnerable.  Indeed, the victim doesn't count at all.  The two sides are defined in terms of the roles they play inside the courtroom, where the prosecutor represents the Establishment and the defendant is the non-conformist.  That storyline is overly-familiar to anyone who grew up in the 1960s and 1970s.  John Roberts, the Times reporter meant to convey (and his readers no doubt understood), lived through the era as a signed-up, buttoned-down member of Nixon's silent majority.

Outside the courtroom, however, the violent criminal is not the oppressed but the oppressor.  Violent crime in America is mostly a problem for the poor, the disadvantaged, and members of minority groups -- which is why it's always news when well-to-do white people are victimized.  In October, 2002, two snipers randomly shot 13 people in the mostly-prosperous suburbs of Washington, D.C.  The shootings were front-page news across the country.  But in the midst of the panic the Washington Post ran a story headlined: "In Areas of Crime, Weary Sympathy."    The article pointed out that street shootings weren't unusual in many areas of the District.  For the headline writer, the District's poorest neighborhoods were defined by the frequency with which their inhabitants were victimized: they were areas of crime.

Similarly, in 2005, when five children were shot at random on New York streets within a period of 16 days, it was no more than local news, because the kids all lived in tough neighborhoods.  Poor people getting struck down by random bullets flying around the inner city is accepted as a fact of life in modern America.  At least, it's accepted by middle-class whites living elsewhere.  The single most sobering crime statistic is this: in America, blacks are six times more likely to be murdered than whites.   As the novelist Jervey Tervalon has written: "The worst scourge of inner-city life isn't drugs, gangs or poverty. It's the fact that if you're a young man, the odds are good that you will get shot."  

After-the-fact punishment is a terribly inefficient way to discourage violence, but no one has yet come up with a better way.  So the Times could as easily written that Roberts "favored using the power of the government to improve the quality of life in the inner city."

One of the most striking developments in American life since 1950 is the ever-greater responsibility Americans assume for their own safety.  They don't venture out at night – or at all  -- they prohibit their children from wandering the streets looking for playmates, install alarms and security cameras everywhere, string concertina wire around their businesses, drill peepholes through their front doors, carry concealed handguns, equip their teenagers with cell phones to use as panic buttons, routinely record fingerprints in banks, post sex offender lists on the web so neighbors can investigate one another, install wrought-iron bars across their windows, surround whole neighborhoods with medieval-style battlements, and on and on. 

Everyone knows that, but not everyone understands that the transformation was the result of official governmental policy.  Just as welfare reformers sought to abolish what they called a culture of dependence, the judiciary, by putting some acts of savage violence beyond the reach of punishment, taught the vulnerable not to depend on government to protect them.  So the Times could have written that Roberts "wanted to reverse the privatization of essential governmental services."

Another way to look at the politics of crime and criminal law is to think in institutional terms.  Laws against violent crime are enacted through a democratic process and reflect the will of the people, expressed (more or less imperfectly) through their elected representatives.  When a judge rules that the Constitution forbids the punishment of a person who violated a criminal law, the judge means that, in this one particular, the people are forbidden to have the sort of society they want.  Judges are members of the governing class, right at the top of the heap.   So the Times could have said that Roberts "championed the position that ordinary people should be permitted to organize their own communities with minimal interference from society's elite." 

I have no reason to think the young John Roberts actually thought in these terms.  Probably he didn't; his commitment to conventionality seems to have been absolute.  But one reason for publishing Judging Crimes is to encourage others to do so.