Adam White on Chief Justice Roberts

November 14th, 2015

You should read Adam White’s profile of the Chief Justice. Beyond his usual insightful commentary, Adam has gone through (seemingly) everything John Roberts has ever said about the Court. The mark of a good piece on the Supreme Court is whether I learn something new–and there is a lot of new material here.

White boils down the analysis to three key questions about the Chief, rather than trying to force a single, unifying theme:

For if one reviews not just his judicial opinions on the Supreme Court and D.C. Circuit, but also his confirmation hearings, his scattered writings, and the speeches he has given, then a handful of common themes emerge. They are not hard-and-fast rules for deciding individual cases. They do not explain his entire body of work. And they certainly are not without tensions or contradictions. But they do seem to highlight at least some of the themes that Roberts has grappled with throughout his career and are stated best not as answers but as questions: [1] What is the federal government’s role in America? [2] What is the Supreme Court’s role in the federal government? And [3] what is the chief justice’s role on the Supreme Court?

For the first question, Adam closes with a strong connection between Justice Jackson and Justice Roberts, and includes a reference from his confirmation hearing where Roberts told us exactly what he was going to do–by laughing.

His approach in King may draw comparisons to Marshall, but on these separation-of-powers issues Roberts might be better compared to another of the great justices. Robert Jackson is remembered for his key opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952), in which he asserted Congress’s predominance over the president, rejecting President Truman’s attempt to take over the U.S. steel industry during the Korean War. At the time of the case, the administration cited Jackson’s own work as FDR’s attorney general, defending a seemingly similar World War II-era takeover of an aviation company. In a footnote, Jackson distinguished FDR’s seizure from Truman’s, but he also rejected the notion that his judicial view should echo his earlier views from the Justice Department: “I should not bind present judicial judgment by earlier partisan activity.”

A half-century later, when Democratic senators cited John Roberts’s work in the Reagan administration as evidence of how he would act as chief justice, Roberts pointed to Jackson’s example in Youngstown. “[H]ere is someone whose job it was to promote and defend an expansive view of executive power as attorney general, which he did very effectively,” Roberts explained, “and then when he went on the Court .  .  . he took an entirely different view of a lot of issues, in one famous case even disagreeing with one of his own prior opinions. .  .  . And that’s, again, one reason many admire him, including myself.”

Halfway through his answer, Senator Patrick Leahy interrupted him: “Are you sending us a message?” The hearing transcript then reads, “[Laughter.]” Except, as we now see, Roberts was serious.


The more I learn about Roberts, the more I realize that he told us exactly what he was thinking–but we weren’t listening.

For the second question, Adam closes with a sharp conclusion of the risk of the Chief trying to avoid political holdings–as that in and of itself can be viewed as political.

Roberts’s desire for the Court to be (and appear) non-political is laudable. But at a certain point, this desire begins to resemble that of his fellow Hoosier, Mitch Daniels, calling on conservatives to support a “truce” in the culture wars. No matter how the Court conducts itself, legislatures will pass political laws; presidents and governors will enforce political regulations; litigants will file lawsuits challenging them or defending against them. (And judges, appointed politically, will decide them.) This is hardly a new development—​Tocqueville noted 180 years ago that “there is almost no political question in the United States that is not resolved sooner or later into a judicial question.” If Roberts’s effort to exercise judicial self-restraint leads him to calibrate (or be seen as calibrating) his judgment in light of the political environment around him, he will, ironically, seem political.

For the third question, White explains Roberts’s veneration for the Chief Justices–four in particular.

It shows, in speeches replete with lessons he has learned from his predecessors. (He’ll offer another such speech in New York later this month, on Chief Justice Charles Evans Hughes.) Noting that portraits of four of the greatest chief justices​—​John Jay, John Marshall, William Howard Taft, and Charles Evans Hughes​—​occupy places of honor in the Court’s two ceremonial conference rooms, Roberts said in 2007, “they all seem to be looking down at me with surprise.” And “as they are looking down upon me,” he added, “I am looking up to them.”

He explained in 2007 the lessons he draws from them. From Jay, the need for the Court to maintain the public’s confidence and respect. From Marshall, the importance of forging the justices’ own disparate voices into a truly institutional voice. From Taft, who is responsible for giving the Court a building of its own, the importance of establishing the Court’s independence. And from Hughes, the importance of preserving that independence against FDR’s court-packing plan.

In my article with Randy Barnett (also in the Weekly Standard), we hint at Roberts’s fetishization of John Marshall.

When such people become justices, defending the Court as an institution will trump defending the Constitution. They will look to John Marshall, not James Madison, for guidance. Justices take an oath not to the Supreme Court, but to the Constitution. We need jurists who are fearlessly committed to the rule of law, reputation be damned.

Building on the legacy of his boss, CJ Rehnquist, CJ Roberts sought to maintain the Court as an institution:

Roberts, following the example of Rehnquist and also Marshall, takes a similarly institutional view that he might not have taken as an associate justice. “The chief justice has a particular obligation to achieve consensus consistent with everyone’s individual oath to uphold the Constitution,” he told senators at his confirmation hearing, “and that would certainly be a priority for me if I were confirmed.”

But how far should the Chief go for compromise?

Taking this approach is not without costs of its own, of course. By reaching a “narrow” decision, the Court leaves the public uncertain about how small changes in facts might change the Court’s view of a constitutional issue. And deciding an issue narrowly in the first case leaves the door open for a subsequent Court, with new personnel, to effectively reverse a prior decision by drawing dubious distinctions.


Adam’s last point I think is an apt summary of the Chief’s modus operandi:

For his thoughtful focus on the deeper institutional questions surrounding the Court, the chief justice deserves (and, from conservatives, receives) great credit. But his skills as a legal craftsman ultimately allow him to increase the range of options before the Court in any given case, which in turn increases, not decreases, the Court’s role in American politics—the very opposite of what he hopes to achieve through judicial self-restraint. Thus he leaves many wondering what, exactly, his judicial methodology will ultimately produce.


Go read the entire article.