Flashback: “Roberts’ Rules”
Published in the Atlantic, 2007, the interview with Chief Justice John Roberts that set the stage for the deconstruction of the Constitution at the hands of one supremely overconfident thinker, a man whose greatest flaw is his inability to see how his unblinking devotion to his supposedly measured humility is itself a form of dangerous hubris.
Before long, the conversation turned to judicial disappointments. “It’s sobering to think of the seventeen chief justices; certainly a solid majority of them have to be characterized as failures,” Roberts said with a rueful smile. “The successful ones are hard to number.” I asked him to elaborate: Why had so many chief justices been failures? Partly, Roberts explained, it was because the powers of the office are not extensive. “A chief justice’s authority is really quite limited, and the dynamic among all the justices is going to affect whether he can accomplish much or not,” he said. “There is this convention of referring to the Taney Court, the Marshall Court, the Fuller Court, but a chief justice has the same vote that everyone else has.” As a result, “the chief’s ability to get the Court to do something is really quite restrained.”
Some of the least successful chief justices, Roberts suggested, had faltered because they misunderstood the job, approaching it as law professors rather than as leaders of a collegial Court. [...]
In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.
Roberts suggested that the temperament of a chief justice can be as important as judicial philosophy in determining his success or failure. And based on the impression he made in his first year on the Court and throughout his career, Roberts seems to have many of the personal gifts and talents of the most successful and politically savvy chief justices, such as Rehnquist and John Marshall [...]
When I met with Roberts, the question of judicial temperament was much on his mind, since he had made it a priority of his first term to promote unanimity and collegiality on the Court. He was surprisingly successful in this goal: under his leadership, the Court issued more consecutive unanimous opinions than at any other time in recent history. But the term ended in what Justice John Paul Stevens called a “cacophony” of discordant voices. Opposing justices addressed each other in unusually personal terms and generated a flurry of stories in the media about the divisions on the Court, especially in cases involving terrorism, the death penalty, and gerrymandering. Roberts seemed frustrated by the degree to which the media focused on the handful of divisive cases rather than on the greater number of unanimous ones, and also by the degree to which some of his colleagues were acting more like law professors than members of a collegial Court. As a result, Roberts looked to the example of his greatest predecessor—Marshall, who served as chief justice from 1801 to 1835—for a model of how to rein in a group of unruly prima donnas.
“If the Court in Marshall’s era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have,” he said. “That suggests that what the Court’s been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up.” Roberts added, “I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy as an institution.”
Let’s just cut to the chase here: in this interview, Roberts shows his clear concern for appearances — for the reputation of the institution itself over concerns for upholding the Constitution, which is the pedestrian function of Justices who would trade away collegiality for a kind of intellectual consistency that is, well, unhelpful.
And the degree to which he fancies himself responsible for upholding public trust in the Court — which he erroneously conflates with NYT op-eds and criticism from the liberal press and leftist law school intelligentsia — will lead, inevitably and unpredictably, to rulings based less on appeals to originalism and the Constitution itself than to showing the public that the Court isn’t run along ideological lines. Even if that means he has to engage in judicial activism to present that image.
It is, in a word, vain. Roberts is so concerned with his Court’s perceived legacy that he is willing to sacrifice the actual job itself to his supposed stewardship as a conservator of the Institution.
That is, he has placed the reputation of the Court above fidelity to the Constitution — and he’s done so by convincing himself that in so acting, he is actually doing us all a favor, presenting us with the public face of a Court that isn’t so wedded to ideology that its members can’t cross over and work together to present a strong, often unanimous opinions.
Or to put it another way, Roberts, ironically, wants the Court to look bipartisan, when it should be the case that the Court shouldn’t be partisan in the first place. And because all of us know that the liberal Justices on the Court will vote in lockstep to promote and empower a growing centralized authority, Roberts, in order to do what it is he believes is the Court’s role — namely, appearing non-ideological — will have to engage in judicial activism from time to time to keep up appearances.
It is a stunningly cynical view of the role of Chief Justice Roberts hides beneath a very ostentatious “humility.” And it is anything but originalist.
That so many on the right have rushed to defend this abrogation of duty for what they believe to be a short-term political gain — Obama is raising taxes, and we’ll hammer him on it, even though our side has spent the last two years arguing that the individual mandate is not a tax, and even though we’re now running against a law whose architect is our Party’s nominee — is not only dispiriting, but it shows a kind of “pragmatism” that is at odds with conservatism / classical liberalism itself.
Not to mention, it is cowardly.
And yet, it’s also totally predictable.
Which, I suppose, is why we are where we are.
(h/t Mark Levin)