Judging Roberts
The Chief Justice of the United States, ten years in
NOV 23, 2015, VOL. 21, NO. 11 • BY ADAM J. WHITE
The notion of national government as the embodiment and agent, not enemy, of “We the People” was one of Roberts’s themes long before he became a judge. It is at the heart of his original Harvard paper on Daniel Webster, where he wrote that “the Constitution, argued Webster, was not a compact between states but rather ‘emanated immediately from the people,’ resulting in a government ‘made for the people, made by the people, and answerable to the people.’ ” According to the young Roberts, Webster’s national government was nothing less than “the permanent instrument of the people.”
Decades later, at the Senate confirmation hearing for his appointment to the D.C. Circuit, Roberts returned to the theme of “We the People,” this time in reference not to Reagan, Webster, or Marshall, but Marshall’s fellow nationalist Justice Joseph Story. In a written response to Sen. Herb Kohl’s worries that Roberts would prefer the states to the federal government, Roberts quoted Justice Story’s explanation, in Martin v. Hunter’s Lessee (1816), that “the Constitution of the United States was ordained and established not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States,’ ” such that Americans had “invest[ed] the general government with all the powers which they might deem proper and necessary,” making the federal government the “paramount and supreme authority.” The national authority had been “tested under fire and confirmed during the Civil War,” Roberts added, “and reaffirmed in the Constitution’s Civil War amendments.”
In such emphatic endorsements of federal power, one finds Roberts standing apart from conservatives who prize the states over the federal government, and who prefer reducing federal power to reaffirming it. For Roberts, the federal government is not the people’s enemy—it is their instrument.
Had this thematic backdrop been more evident in his two confirmation hearings, Roberts’s endorsement of broad federal power might have attracted more attention. In his D.C. Circuit confirmation, responding to Senator Edward Kennedy’s suggestion that Roberts would construe federal power narrowly, he invoked Marshall’s McCulloch decision for the proposition that “Congress’s lawmaking authority,” though subject to the Constitution’s other provisions, is “very broad.”
And at his Supreme Court confirmation, Roberts was all the more emphatic. He pushed back against the notion that he would aggressively continue the recent trend of Supreme Court decisions asserting the commerce clause as a meaningful limit on the scope of federal authority—namely, U.S. v. Lopez(1995) and U.S. v. Morrison (2000), in which the Rehnquist Court declared unconstitutional the Gun-Free School Zones Act and the Violence Against Women Act. He declared that those two decisions, which conservatives lauded as landmarks of the Rehnquist Court’s jurisprudential reinvigoration of constitutional federalism, were only “part of a 218-year history of decisions applying the commerce clause.” In “decision after decision,” Roberts urged, the Supreme Court had previously recognized the Constitution as vesting the federal government with “a broad grant of power,” giving Congress “the authority to determine when issues affecting interstate commerce merit legislative response at the federal level.”
Of course, in his time on the Court, Roberts has voted to strike down Congress’s laws on federalism grounds. But he has never come close to resembling the states-rights caricature that his critics sketched of him in 2005. Instead, his tendency in cases implicating federalism has been either to preserve Congress’s authority by searching for alternative constitutional provisions that would justify it or, when he does strike down a law on federalism grounds, to do so in a way that recognizes Congress’s ability to pursue the same ends by other means.
The clearest (and most controversial) example of this was his decisive opinion in NFIB v. Sebelius(2012), affirming the constitutionality of Obamacare’s individual mandate. In the first step of his analysis, Roberts held that the individual mandate could not be sustained under the Constitution’s commerce clause, because the mandate does not “regulate” preexisting interstate commerce. “The Framers gave Congress the power to regulate commerce, not to compel it,” he wrote, “and for over 200 years both our decisions and Congress’s actions have reflected this understanding.” Furthermore, he added, the mandate could not be sustained under Congress’s constitutional power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” But then Roberts famously (or infamously) took one step further and considered alternative grounds for sustaining the mandate: Congress’s power to tax. Far from relishing an opportunity to limit federal power, Roberts stressed that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”
The uproar sparked by Roberts’s decision in NFIB obscured a crucial fact about the chief justice: His approach in NFIB was the very same approach that he had proposed nine years earlier, as a D.C. Circuit judge. Indeed, he had urged this approach in the very opinion that liberals seized upon as evidence of his purported states-rights ideology.
Rancho Viejo, LLC v. Norton (2003) involved the question whether the Endangered Species Act empowered the Fish & Wildlife Service to block a California housing development that would have affected the arroyo toad. A three-judge panel of the D.C. Circuit affirmed the government’s action, holding that it did not exceed Congress’s power; later, Judge Roberts dissented from his colleagues’ decision not to have the entire court rehear the case. At his Supreme Court confirmation hearing, Roberts’s dissent drew notice not just for his amusing description of the “hapless toad that, for reasons of its own, lives its entire life in California,” but also for his suggestion that the agency’s action might (or might not) have exceeded the limits of the commerce clause. Yet Roberts’s critics overlooked his further suggestion that if the agency’s primary justification failed to pass constitutional muster, then the court would need “to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent” [emphasis added].
Roberts stressed this point at his Supreme Court confirmation hearing, arguing that his opinion inRancho Viejo reflected his view that “if there’s another basis on which to evaluate” the challenged application of the act, then “we should focus on those other alternative grounds and see if we could base and uphold the act on those.” Democrats, trying to paint him as an antifederal ideologue, put too little credence in those words. Republicans, still years away from Obama’s tidal wave of regulation and executive power, missed them, too.
His other opinions, including some of his most controversial ones, reflect his broad conception of federal power. For even when striking down laws on federalism grounds, he tends not to rule categorically that Congress cannot regulate a certain subject matter; rather, he tends to find fault in the particular way that Congress has asserted power. In the last part of NFIB v. Sebelius, for example, Roberts and six other justices held that Obamacare’s expansion of Medicaid went far beyond the sort of financial inducement allowable under the Constitution, because the act’s threat to strip all Medicaid funding from states that did not expand their program was more than a mere incentive allowed under the Court’s precedents—it was a “gun to the head” of those states. But Roberts took care not to foreclose Medicaid expansion altogether: Nothing “precludes Congress from” paying states to expand Medicaid, he stressed.
More recently, in Shelby County v. Holder (2013), where the Supreme Court struck down Congress’s 2006 reauthorization of the Voting Rights Act’s “preclearance” provision limiting certain states’ ability to redraw voting district lines, Roberts’s majority opinion held that Congress’s disparate treatment of certain states violated the “fundamental principle of equal sovereignty” among the states. But he stressed that Congress’s true failure was in basing its 2006 reauthorization on a 40-year-old factual record. Had Congress singled out certain states for extra “preclearance” obligations for a reason that “makes sense in light of current conditions,” then its action might pass constitutional muster.
Similarly, in Medellín v. Texas (2008), Roberts’s opinion for the Court held that the president could not force states to overturn the convictions of foreign nationals who had not been apprised of their rights under the Vienna Convention Treaty. (Today the case is perhaps better known for effectively launching the political career of Texas’s then-solicitor general, Ted Cruz.) But he took care not to hold that the federal government could never place such an imposition on the states—which had been one of Texas’s arguments. Rather, Roberts’s majority nullified the federal government’s demand because it had come from the president rather than Congress. If Congress had implemented this aspect of international law with domestic legislation, Roberts stressed, then the case would have been different.
The distinctions that Roberts drew in Medellín, between Congress and the executive branch highlight a crucial nuance in his thinking, regarding the authority of Congress, the president, and the administrative state. At the time of his Supreme Court nomination, many presumed that the former executive branch lawyer would be “overly deferential to the executive branch” (as Senator Dick Durbin put it). One year later, Jeffrey Toobin wrote that Roberts, “true to his White House past,” had “consistently voted to uphold the prerogatives of the executive, especially the military, against the other branches.” But the passage of just a few years has highlighted precisely the opposite tendency: namely, that Roberts’s relatively accommodating view of Congress’s power contrasts with his more skeptical eye toward the executive branch, especially the administrative state.
Roberts told senators repeatedly at his confirmation hearing that his support of executive power while serving in the executive branch was a poor indicator of how he might view cases from the bench. In the Reagan administration he had been “a lawyer for the executive branch, not a judge who would be considering the issue in an entirely different light.”
Skeptics were wrong to doubt this. In the Supreme Court’s latest term, for example, when the Court affirmed the president’s power to disregard Congress’s statutory requirement that he issue passports to Jerusalem-born Americans with Israel listed as the place of birth, Roberts dissented. “For our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs,” he wrote. “[O]ur precedents have never accepted such a sweeping understanding of executive power,” a “perilous step . . . of allowing the President to defy an Act of Congress in the field of foreign affairs.” And to those who quoted (as executive branch lawyers often do) the words of John Marshall (while still a congressman) that the president is the “sole organ” of our nation in foreign affairs, Roberts offered a starkly different Marshall quotation: “I confess the first bias of my mind was very strong in favour of . . . the executive,” Marshall wrote three years after his arrival on the Court. “But I have been convinced that I was mistaken.”
Even more striking is the series of opinions that Roberts has written on the administrative state—criticizing Congress and the president for making agencies too free from democratic accountability, and the courts for deferring too much to agencies’ legal interpretations.
In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), Roberts wrote the Court’s opinion striking down part of the Sarbanes-Oxley Act. The act had made the new board of accounting regulators extraordinarily free from democratic accountability—effectively independent from its nominal overseer, the Securities and Exchange Commission, which in turn was effectively independent from the president. The Supreme Court had affirmed one such layer of “independence” 70 years earlier; but when Sarbanes-Oxley tried to double that independence, Roberts would not allow it.
“This novel structure does not merely add to the Board’s independence,” he wrote for the Court, “but transforms it.” In so doing, Sarbanes-Oxley exacerbated the already dangerously antirepublican nature of the modern administrative state. “One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts,” he wrote. “Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.”
He returned to these republican themes three years later. In City of Arlington v. FCC (2013), he dissented from the Court’s conclusion that the deference federal courts give to agencies’ statutory interpretations should apply even when the agency is interpreting the statute defining its own jurisdiction. Citing Madison’s warning against the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” Roberts urged that the accumulation of such power in regulatory agencies is now “a central feature of modern American government.” Madison and his fellow Framers “could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities.”
The “danger posed by the growing administrative state cannot be dismissed,” he warned. His warnings failed to convince a majority of the Court in City of Arlington, but Roberts succeeded in making it part of a majority opinion just two years later. This success was overshadowed, however, by the fact that it appeared in one of his most controversial decisions: the Court’s affirming of the Obama administration’s health insurance subsidies in King v. Burwell.
In King, Roberts and the majority affirmed the administration’s argument that a statute allowing subsidies for insurance bought on exchanges “established by the State” also covered exchanges established by the federal Department of Health and Human Services. But before reaching that conclusion, Roberts and the majority held that the Court itself must interpret the statute, affording nodeference to the views of the IRS, the agency that had promulgated the challenged regulation. Such deference is inappropriate, the Court held, when the statute at issue governs not a matter of marginal importance but “a question of deep ‘economic and political significance.’ ” Though Roberts and his colleagues ultimately ruled in favor of the administration on this particular regulatory program, they did so only after reining in the doctrine of judicial deference, thereby reinvigorating the judicial branch’s review of agencies’ massive regulatory programs in the future.
Reviewing this aspect of King, President Obama’s former regulatory czar, Cass Sunstein, compared Roberts’s work to that of Chief Justice Marshall in Marbury v. Madison, affirming a particular action by President Jefferson while at the same time expanding the courts’ power by entrenching the practice of judicial review. “Roberts’s impressive opinion today was not quite that dramatic, but it is a masterwork of indirection,” Sunstein writes. Though seen by most “as a final vindication of Obamacare,” Roberts’s opinion “is also a strong assertion of the court’s, and not the executive branch’s, ultimate power to say what the law is.”
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 inYoungstown. “[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 Supreme Court in the Federal Government
Roberts’s view of Congress and the president also informs the second major theme of his work: the place of the federal courts, and especially the Supreme Court, in our constitutional system.
He is often criticized, especially by conservatives, for being too political—for letting concerns about political backlash affect his legal judgment, especially in the two Obamacare cases. One cannot know the private reasons he harbors for any decision, so it is impossible to say with any certainty whether such concerns affected his judgment in those or other cases. But reviewing his past statements, one finds throughout a consistent theme. Yes, Roberts is concerned about the Court’s interaction with politics, but in a broad, long-run sense: If the Court becomes too embroiled in political disputes, it will undermine the American people’s willingness to respect judicial independence, and hence will undermine the rule of law.
This, too, was a point he pressed in his 2003 nomination to the D.C. Circuit. “My own judicial philosophy begins with an appreciation of the limited role of a judge in our system of divided powers,” he wrote. Deciding cases requires legal acumen and the ability to weigh competing arguments, but also “an essential humility grounded in the properly limited role of an undemocratic judiciary in a democratic republic.” While judges are independent of the people, “they should be ever mindful that they are insulated from democratic pressures precisely because the Framers expected them to be discerning the law, not shaping policy.”
In other words, “judges need to recognize that judicial independence is not an end in itself,” Roberts said in a 2006 speech. “Judges are insulated from political pressures precisely because they’re not supposed to be making political decisions, but deciding cases according to the rule of law.”
But the task is slightly more complicated than that. Judicial independence requires not only that the courts bind themselves with law and precedent limiting judges’ discretion, but also that the peoplerecognize the courts as respecting their proper limits. Reflecting in 2010 on the long history of conflicts between presidents and the Supreme Court, Roberts suggested that “it’s the Court’s actions,” from Jefferson’s day to FDR’s and onward, “to demonstrate to the public that it was doing its level best to try to interpret the Constitution according to their lights, that . . . have established the Court in a position where people generally accept the notion that it should be independent.”
As chief justice, Roberts speaks often on this need for judicial “self-restraint,” but it is not a view that he adopted only after joining the Court. The memoranda that he drafted in the early 1980s, in President Reagan’s White House counsel’s office and Justice Department, make the same arguments. In a 1985 memorandum to White House counsel Fred Fielding, Roberts criticized then-chief justice Burger’s year-end report on the state of the federal judiciary (a report that Roberts himself now publishes every New Year’s Eve) for suggesting that the Court was overworked. “The fault lies with the Justices themselves, who unnecessarily take too many cases. . . . So long as the Court views itself as ultimately responsible for governing all aspects of our society, it will, understandably, be overworked.”
And in a 1985 memorandum that he drafted for Fielding, Roberts stressed why calls for judicial self-restraint do not “attack” the judiciary but rather benefit it. Quoting Justice Jackson, he wrote, “It is precisely because I value the role the court performs in the peaceful ordering of our society that I deprecate the ill-starred adventures of the judiciary that have recurringly jeopardized its essential usefulness. . . . By impairing its own prestige through risking it in the field of policy, it may impair its ability to defend our liberties.” Or, as an unsigned “Draft Article on Judicial Restraint,” found in Roberts’s early-1980s Justice Department files, stressed, “the greatest threat to judicial independence occurs when the courts . . . engag[e] in policymaking committed to the elected branches or the states. When courts fail to exercise self-restraint and instead enter the political realms reserved to the elected branches, they subject themselves to the political pressure endemic to that arena and invite popular attack.”
As chief justice, Roberts does not often speak of the risk of public backlash against the Court, but the theme has appeared in some of his writings and speeches. In his first “Year-End Report on the Federal Judiciary,” penned just months after he became chief justice, he noted that “a strong and independent judiciary is not something that, once established, maintains itself. It is instead a trust that every generation is called upon to preserve, and the values it secures can be lost as readily through neglect as direct attack.”
And Roberts seems to worry that the nation’s increasingly intense political climate might, if judges are not careful, begin to affect the courts’ own work. When asked last year, at the University of Nebraska, about the challenges facing the judiciary today, Roberts pointed to one problem “in particular that is causing a lot of concern, and it has to do with the other branches of government. They are not getting along very well these days among themselves. It’s a period of real partisan rancor that I think impedes their ability to carry out their functions, and I don’t want it to spill over and affect us.” Justices do not function as Democrats and Republicans, he noted, “but if you are an intelligent layperson looking at what’s going on, and you see for example the confirmation process,” in which justices are now confirmed by narrow partisan votes, “you think, well, this must be a political entity, because they’re putting people on or rejecting them on partisan political lines.”
“And so I’m worried about people having that perception,” he concluded, “because it’s not an accurate one about how we do our work, and it’s important for us to make that as clear as we can to the public.”
The most immediate way to accomplish this, Roberts noted in his 2014 forum at Rice, is through the Court’s issuance of written opinions, a practice that “ensures that I’m not engaged in political activity but engaged in legal activity—or at least imposes a check on me. If there’s a judge or a justice who wants to be a politician, he or she still has to explain what they’ve done, and the explanation starts to look pretty weak. That is a very valuable check on the process.”
This concern is found at the heart of several of Roberts’s opinions, trying to prevent the judiciary from being politicized—or politicizing itself. In Williams-Yulee v. Florida Bar (2015), Roberts distinguished the First Amendment’s protection of political speech in legislative or executive elections, which Roberts supports, from political speech in campaigns for judicial office. “Judges are not politicians,” he wrote in his opinion for the Court, “even when they come to the bench by way of the ballot.” States may select judges through elections rather than appointments, but “the role of judges differs from the role of politicians,” and thus the states have greater justification in limiting financial contributions that create even the mere appearance of judicial partiality. Because the judiciary’s authority “depends in large measure on the public’s willingness to respect and follow its decisions . . . justice must satisfy the appearance of justice.”
Roberts’s related concerns about self-restraint, and its long-run role in the preservation of judicial independence, are found also in his dissenting opinions criticizing the Court for intervening too aggressively in policy disputes with insufficient legal basis. In Boumediene v. Bush (2008), where a five-justice majority struck down the Detainee Treatment Act’s limits on federal court jurisdiction over habeas corpus petitions from Guantánamo Bay detainees, Roberts criticized his colleagues’ “roving search for constitutionally problematic scenarios,” which far exceeded the limits of the “delicate power of pronouncing an Act of Congress unconstitutional.” Similarly, in Massachusetts v. EPA (2007), in which a five-justice majority rejected the Bush EPA’s conclusion that the agency lacked power to regulate greenhouse gas emissions, Roberts wrote in dissent that environmental activists “[a]pparently dissatisfied with the pace of progress on this issue in the elected branches” had “come to the courts” instead. The Court’s decision to recognize the plaintiffs’ legal standing to bring such a case “has caused us to transgress ‘the proper—and properly limited—role of the courts in a democratic society.’ ”
But Roberts’s call for judicial self-restraint is heard most clearly in recent disputes over the claimed constitutional right of same-sex marriage. In Hollingsworth v. Perry (2013), proponents of California’s successful ballot initiative preserving traditional marriage law in that state attempted to defend the law against a constitutional challenge by same-sex couples. The proponents needed to defend that law, since California’s elected leaders refused to, after losing the case at the initial trial stage. Chief Justice Roberts, writing for the Court, held that the proponents could not defend the law in court because they lacked standing—they lacked a sufficient personal stake in the dispute. The requirement to show standing “serves to prevent the judicial process from being used to usurp the powers of the political branches,” he wrote, “keeping the Judiciary’s power within its proper constitutional sphere.” As inMassachusetts v. EPA, it “ensures that the Federal Judiciary respects ‘the proper—and properly limited—role of the courts in a democratic society.’ ”
Two years later, when the national debate over same-sex marriage returned to the Court in Obergefellv. Hodges (2015), Roberts denounced the majority’s creation of this constitutional right, because the Court made no attempt to root the law in constitutional text, the nation’s history, or anything else more substantial than simply the five-justice majority’s own “extravagant conception of judicial supremacy,” reaching a decision that “not only overlooks our country’s history and tradition but actively repudiates it.” Connecting his argument to the points that the majority opinion’s author, Justice Anthony Kennedy, had made in a prior judicial-campaign-speech case, and in terms that could have been drawn from Roberts’s memos in the Reagan White House, the chief stressed that “the legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments,’ ” a respect that “flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and the law.”
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.
The Chief Justice in the Supreme Court
John Roberts is not Chief Justice of the Supreme Court. He is, in the statutory words, “Chief Justice of the United States.” Is this a distinction without a difference? Is the chief justice simply “the first among equals” on the nine-justice Court, as it is often said? Or do the chief justice’s responsibilities and role go further?
By his own admission, Chief Justice Roberts arrived on the Court keenly attuned to the chief’s unique role on the Court. When asked by legal lexicographer Bryan Garner, in early 2007, what sorts of books he was reading, Roberts answered, “I’ve been reading a lot of biographies of chief justices and learning a lot about them.”
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.
He says also that he learned from Roger Taney, author of Dred Scott’s pro-slavery opinion (and thus the Court’s most infamous chief justice), the dangers of trying to use the Court’s power to go beyond the limits of individual cases and decide national debates singlehandedly, an overreach that in Taney’s case exacerbated matters disastrously. Asked which of his predecessors he’d like to join for dinner, he chose Taney—“[I’d] like to have a conversation with him before he did that, and tell him with of course the benefit of hindsight that it’s just not going to work.”
But the example that Roberts espouses the most proudly is that of his own mentor and immediate predecessor, William Rehnquist, for whom Roberts clerked on the Supreme Court before President Reagan promoted Rehnquist to the chief justice’s seat.
Roberts’s succession of Rehnquist is one of the most poignant stories in the Court’s history. The two originally were to serve together on the bench, with Roberts nominated to replace the retiring justice Sandra Day O’Connor. But when the ailing Rehnquist passed away just weeks later, President Bush renominated Roberts to be the next chief—announcing his choice the day before Roberts helped to carry Rehnquist’s casket (“plain unvarnished pine,” Roberts later wrote) up the Court’s marble steps to its Great Hall.
Roberts speaks often on the lessons he draws from Rehnquist. “I have faced the challenges of filling the office that he left vacant,” Roberts remarked in 2009. “As I look back on him as my predecessor, my respect for him continues to grow.”
As it happens, Rehnquist himself arrived at the Court with at least some notion of how a chief justice ought to manage it. In a 1954 letter to Justice Robert Jackson, for whom he had clerked a few years earlier, Rehnquist criticized liberal acclaim for the newly appointed chief justice, Earl Warren. “I cannot help choking every time I hear the line peddled by, among others, Time magazine, to the effect that ‘what the court really needs is not so much a lawyer as an administrator and conciliator.’ What the court really needs is a Chief Justice”—requiring experience in the lower courts and “the ability to think and write about law.”
In Rehnquist’s first decade on the Court, serving as an associate justice, he seemed to fit such a template, often writing solo dissents (which earned him the nickname “the Lone Ranger”) trying to advance a conservative jurisprudence on a strongly liberal Court. But once elevated to the chief justice’s seat by President Reagan, Rehnquist underwent a marked transition, adopting a more conciliatory approach with an eye to the Court’s broader institutional role in the government. “I think there’s no doubt that he changed, as associate justice and chief,” Roberts told the Atlantic’s Jeffrey Rosen in 2007; “he became naturally more concerned about the function of the 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.”
He has maintained that view on the Court, explaining from time to time in speeches his view that (as he put it at Rice) “the broader agreement you can get on the Court, the better,” because it instills greater public confidence that the decision is correct. “And the way you get to broader agreement is to have a narrower decision.” He added that “I happen to think that’s a good thing, that our decisions reach as narrowly as possible, rather than the justices trying to write broadly to cover all sorts of situations that they might not have anticipated or thought about carefully enough.”
On the question how far a justice should go to achieve compromise, Roberts has been at least somewhat ambiguous. On the one hand, he takes care to stress that compromise involves justices forgoing larger points of disagreement in order to find narrower common ground. He made such a point in his separate opinion in the Citizens United (2010) campaign finance case. Rejecting the dissent’s call for the majority to decide the case by endorsing nonconstitutional arguments that the dissenters themselves rejected, Roberts observed, “It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”
On the other hand, he admitted rather bluntly in his Supreme Court confirmation hearing that the need for a panel of judges to reach consensus dispenses with “the nuances of academic theory . . . fairly quickly, and judges take a more practical and pragmatic approach to trying to reach the best decision consistent with the rule of law.”
In that sense, Roberts’s ideal chief might resemble none more than the Daniel Webster of his Harvard essay: “a man of character, a disinterested, self-sacrificing man of wisdom who continually worked with others,” who “did not fight in the thick of political battles, but rather raised himself above the conflict and stilled it through dispassionate compromise.” Or, again, Rehnquist, who in writing opinions “had a keen sense of what issues were important, and what issues could be left for another day,” Roberts said in a 2009 speech. “When I go back and study his opinions . . . I’m most impressed by what he chose not to say.”
Such an approach is evident in many of the Roberts Court’s decisions. In Northwest Austin Municipal Utility District No. 1 v. Holder (2009), a case in which litigants called on the Court to strike down the Voting Rights Act’s preclearance requirement as unconstitutional, Roberts assembled an eight-justice majority to decide the case in favor of the challengers but on nonconstitutional grounds. This deferred the more difficult constitutional question until 2013, when the aforementioned Shelby County case reached the Court, forcing the justices to divide sharply over the constitutional question, with the majority opinion quoting many of the principles that the Northwest Austin majority had agreed upon (to the Shelby County dissenters’ palpable regret).
In McCullen v. Coakley (2014), when the Court struck down Massachusetts’s prohibition against standing on sidewalks near abortion clinics, Roberts succeeded in amassing a majority that included even the Court’s staunchest supporters of abortion rights, by deciding the case narrowly, holding that this particular prohibition was unconstitutionally burdensome but leaving the states free to adopt more narrowly tailored restrictions around abortion clinics.
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.
The Chief and His Critics
While Chief Justice Roberts has not explicitly defined what makes for a “good judge,” Chief Justice Rehnquist did. In a lecture at Louisiana State University in 1983, Rehnquist stressed “one or two virtues” that “seem to me to be more important than others for a judge to possess.” First, “a judge’s disposition should be about evenly balanced between sail and anchor. He cannot be anchored to the past mechanically by a line of precedents, but by the same token he ought not to be moved by each puff of novel doctrine which may be generated by one group of litigants or another.” Second, “whether it be denominated ‘common sense’ ” or something else, “the best judges undoubtedly have some sort of understanding of human nature and how the world works.” Rehnquist surely would find that his successor and protégé embodies those virtues.
Roberts, in turn, has described what he thinks made Rehnquist great. In a 2006 speech at Middlebury College (later published in the Vermont Law Review), he described Rehnquist’s impact on the Court and the law. While others might describe Rehnquist’s legacy in terms of promoting structural principles of federalism and the separation of powers, Roberts saw that, “From my perspective, I see his impact in broader terms.” Rehnquist, he said, had refocused the justices, and the lawyers arguing before them, on the laws’ actual words:
[L]egal argument has become more rigorous and focused, and Chief Justice Rehnquist was the leading proponent of that change. . . . Any lawyer appearing before the Supreme Court when Chief Justice Rehnquist was on the bench, who made an argument about what Congress meant in a particular statute, was sure to get a question from the Chief, “You say that’s what Congress meant. What did Congress say?” . . . Forty years ago, just before William Rehnquist went on the Court, legal arguments were more free-ranging, more free-wheeling. When he left the Court, they were more about law, as I think arguments in the Court should be.
Roberts’s assessment rings true for Rehnquist—but it is oddly dissonant for himself. The main criticism of Roberts, at least from conservatives, is that Roberts’s own proclamation of a consistent method for interpreting the law, and his expansive focus on legislative intent, seems to focus more on “what Congress meant” than on “what did Congress say?”
Indeed, Roberts seemed to endorse such an approach in his Supreme Court confirmation hearing. “I think when you folks legislate,” he told the senators, “you do have something in mind in particular, and you put it into words, and you expect judges not to put in their own preferences, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute.” In a written answer to senators during his D.C. Circuit confirmation process, he quoted the classic line that in interpreting a statute, “we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”
Conservatives today would say that this focus on what Congress meant, on its “object and policy,” over what Congress said reached its zenith in King v. Burwell, where Chief Justice Roberts, writing for the six-justice majority, concluded that when Obama-care allows the Obama administration to subsidize health insurance bought on exchanges “established by the State,” such subsidies can also flow to exchanges established by the federal government. Such a holding has virtually nothing to do with what Congress said and everything to do with the justices’ view of what Congress meant to say—or what it would have said if a broken legislative process hadn’t sped the Affordable Care Act on its way, leaving Congress to pass the law before finding out what was in it, a final bill marred by what Roberts’s opinion describes, gently, as “inartful drafting.”
Roberts might respond by explaining, as he did in a 2004 opinion for the D.C. Circuit, that the court’s job is to enforce a statute’s plain language “where the disposition required by the text is not absurd”—and that it would have been absurd to assume that Congress wanted to allow the health insurance exchange subsidy mechanism to send Obamacare into a “death spiral.”
Then again, conservatives might respond by reminding Roberts of his own argument, in a 1993 law review article, that “doctrines of judicial self-restraint” are indispensable precisely because they “compe[l] the other branches of government to do a better job in carrying out their responsibilities under the Constitution.” Had the Court in King refused to save Nancy Pelosi, Harry Reid, and other congressional Democrats from themselves, future Congresses would be more likely to read laws before passing them.
This is the point, more than anything else, that leaves many conservatives extremely frustrated with Chief Justice Roberts. After three decades of promoting originalism or textualism as interpretive methodologies that anchor judicial decision-making in the written text of laws, Chief Justice Roberts decided one of the most significant cases of his tenure with overwhelming focus on Congress’s purposes (as he saw them)—straining to justify his decision with an implausible reading of the law’s text.
The left’s most reliably partisan commentators have attempted to minimize conservative criticism of Roberts by arguing that his record is overwhelmingly conservative, in terms of the outcomes. Linda Greenhouse, longtime Supreme Court reporter for the New York Times, writes, “The attacks from the left are logical enough,” but “the fire from the right” reflects merely the ever more aggressive demands that conservatives allegedly place on the Roberts Court. Jeffrey Toobin writes in the New Yorker that conservatives are up in arms over Roberts’s failure to be “a partisan ideologue”—and that they should be grateful for Roberts’s other decisions “gutt[ing] the Voting Rights Act,” and for “Citizens United and all the other cases that undermined our system of regulating political campaigns.” Their analysis (such as it is) tries very hard to avoid conservatives’ actual objections to the chief justice’s approach—namely, that it risks undoing at least some of the improvements in legal argument that Chief Justice Rehnquist achieved, and that Roberts himself has recognized.
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.
John Roberts wants to be remembered as a good judge, “nothing more or less than that.” We know what he said. But what did he mean?
Adam J. White is a visiting fellow at the Hoover Institution.
