The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I am, admittedly, very tough on the Chief Justice. Not because I disagree with his decisions. I routinely disagree with decisions from all nine Justices. No. I am tough on Roberts because of his arrogance. He entered this position fifteen years ago with a master plan: if there were fewer 5-4 right-left decisions, the Court will function better as an institution. And Roberts would cast decisive votes to reduce the number of right-left 5-4 decisions. Congratulations. But the means he chose to accomplish those ends have broken the Court, and the way it is perceived.
Shortly after Blue June, I wrote "Roberts's self-professed humility depends on everyone being too dumb to see what he is really doing." I firmly believe Robert's transparent Machiavellianism has done far more damage to the Court than Scalia's acerbic barbs or Kennedy's vapid prose. I can firmly disagree with a Ginsburg or Sotomayor opinion, but I know, and respect, why they reached the result they reached. For Roberts, every decision has to refracted through some bizarre political lens. His jurisprudential lodestar is the Gallup poll.
Chief Justice Rehnquist accurately characterized this dilemma in his handdown of Planned Parenthood v. Casey. This passage, regrettably does not appear in the published dissent. But it is worth listening to. We include the audio in our 100 Cases series.
The joint opinion's insistence on preserving the form, if not the substance of the rule, can just as easily be viewed as a surrender to those who have brought political pressure in favor of that decision. Once the Court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself.
The Chief's arrogance prevents him from recognizing the depth of this bottomless pit. He keeps digging, year after year. He is so locked into his ways that he cannot escape. He decided his gameplan in 2005, and absolutely nothing can make him change course.
Today's Washington Post includes a column by Varad Mehta and Adrian Vermeule that fully captures my perception of of the Chief. It is titled "John Roberts's self-defeating attempt to make the court appear nonpolitical." The essay begins:
"The highest art is artlessness," observed Francis Alexander Durivage, a now largely forgotten 19th-century American author: The appearance of acting naturally, without calculation, wins trust and admiration. In contrast, strategic behavior flagrantly intended to advance an agenda often creates public suspicion — which may undermine the aims for which the strategy is undertaken.
Chief Justice John G. Roberts Jr. might consider the Durivage Principle. In a number of important cases in recent years, observers on both left and right have concluded that Roberts has engaged in strategic maneuvering: His goal appears to be to preserve what he takes to be the legitimacy of the Supreme Court, by disproving any suspicion that the justices vote ideologically or otherwise engage in political behavior.
Yet because it is so clear that he is crafting opinions with this end in mind, the chief justice defeats his own aims. Roberts famously said at his confirmation hearing that the role of the justices is just to "call balls and strikes." No one thinks that is an apt description of his judging. By striving so conspicuously to depoliticize the Supreme Court, he has brought about the very thing he hoped to prevent: No one has done more to politicize the court than the chief justice.
Mehta and Vermeuele walk through Roberts's greatest hits, including NFIB v. Sebelius, Department of Commerce v. New York, June Medical v. Russo, DHS v. Regents, South Bay v. Newsom. There is one prominent Roberts 5-4 decision that doesn't fit the mold: Shelby County v. Holder. Only his longstanding, Reaganesque grievance against the Voting Rights Act allowed him to deviate from his master plan. And then, he gave the government one, last meaningless chance to repair the statute. (See pp. 88-90 of my article, SCOTUS after Scalia). I doubt Shelby County would come out the same way today.
Mehta and Vermeule conclude:
As chief justice of the United States, Roberts's solicitude for the reputation of both the court he leads and the entire branch of government of which he is the figurative head is understandable. Ultimately, however, his efforts to show that the court is not a partisan institution have provoked the right as much as the left. Two of Roberts's consequential legacies will probably be the very politicization of the Supreme Court he sought to prevent, and a Republican Party that is likely to turn "No more Robertses!" into a mantra — as it did "No more Souters!" The chief will have no one to blame but himself.
There is still a way for Roberts to escape this bottomless pit.