State of the Union January/February 2007

Roberts's Rules

In an exclusive interview, Chief Justice John Roberts says that if the Supreme Court is to maintain legitimacy, its justices must start acting more like colleagues and less like prima donnas.
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John Roberts at the University
of Miami last November

Last July, I went to the Supreme Court to interview John G. Roberts Jr., who had just completed his first term as chief justice of the United States. I was finishing a book about judicial temperament, and Roberts, who is a keen student of constitutional history, had agreed to share some thoughts on the subject. I had interviewed Roberts once before, when his nomination to the U.S. Court of Appeals for the District of Columbia Circuit was stalled in the Senate, but I had not talked to him since he became chief justice and was eager to hear his thoughts about the new job.

The chief justice’s chambers are impressive without being showy. They include a paneled waiting room, the private conference room in which all nine justices meet to discuss cases after oral arguments, and a cozy inner office with fading photographs—hung by the late Chief Justice William Rehnquist in the 1980s—that Roberts hadn’t yet bothered to replace. In shirtsleeves and a tie, Roberts invited me to take off my jacket and have a seat in his office, on a nineteenth-century couch that, according to Court lore, is the one on which John Quincy Adams expired in the House of Representatives.

From the archives:

"Whose Court Is It Really?" (January/February 2006)
John Roberts is the new chief justice, but the Supreme Court isn't his to lead just yet. By Benjamin Wittes

"Rehnquist the Great?" (April 2004)
Even liberals may come to regard William Rehnquist as one of the most successful chief justices of the century. By Jeffrey Rosen

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. Harlan Fiske Stone, a former dean of Columbia Law School, was a case in point. Stone “was a failure as chief, because of his misperception of what a chief justice is supposed to be,” Roberts said, gesturing to the justices’ private conference room through an open door of his office. “It’s his desk out there that is separate from the conference table, and he … sat at his desk, and the others were at the table, and he almost called on them and critiqued their performances. They hated that.” Roberts laughed. “As a result, he was a failure as a chief justice.”

Related graphic:

Getting to Yes
Fifty-four percent of decisions in the first year of the Roberts Court were unanimous. This graphic shows the perecentage of written court opinions on which each pair of justices agreed with one another.

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, rather than those of a heavy-handed academic like Stone.

As one of the leading Supreme Court advocates of his generation, Roberts appeared before the Court many times, representing clients on both sides of the political spectrum and earning a reputation for fair-mindedness. He was widely respected as a legal craftsman who came to cases without preconceived grand theories, but instead took positions based on the arguments and legal materials in each case. Personally as well as jurisprudentially modest, Roberts prefers baseball analogies to showy displays of his formidable intellect, and he treats litigants with evenhanded courtesy. He sends gifts to acquaintances who have newborn children, or notes to those whose family members are ill. Despite the daunting administrative and social demands of being chief justice, Roberts, who turns fifty-two this year, has tried to maintain a balanced life. Most nights, he is home for dinner with his wife, Jane Sullivan Roberts, and two young children, Josephine and Jack; he plays with the kids until their 8:30 p.m. bedtime, and then works for a few hours before going to sleep. Because of his personal thoughtfulness and sense of proportion, it’s easy when talking to him to forget that he is the chief justice of the United States.

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.”

In particular, Roberts declared, he would make it his priority, as Marshall did, to discourage his colleagues from issuing separate opinions. “I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.”

In Roberts’s view, Marshall’s success in unifying the Court was a reflection of his temperament. “He gave everyone the benefit of the doubt; he approached everyone as a friend. The assumption was … ‘This is someone I’m going to like unless proven otherwise,’” Roberts said. “He was convivial, he took great pride in sharing his Madeira with his colleagues … [He was not] the artificial glad-hander type; it was just in his nature to get along with people. I think that had to play an important role in his ability to bring the Court together, to change the whole way judicial decisions were arrived at, to really create the notion that we are a Court—not simply an assemblage of individual justices … It was the force of his personality. That lack of pretense, that openness and general trustworthiness, were very important personality traits in Marshall’s success,” Roberts observed.

I asked Roberts to contrast Marshall’s temperament with that of Thomas Jefferson, his archrival. “Jefferson certainly did not have the common touch,” he emphasized. “To some extent, maybe affected, and perhaps I’m being unfair to Jefferson but [he had] more of almost like a philosophe’s attachment to the ideas.” Roberts shook his head. “When you look at [Jefferson] side by side with Marshall, Marshall comes across as a more substantial character, certainly more likable. Yes, I think they’d both invite you to share their table and pour you a drink, but you kind of think you’d have a very academic discussion with Jefferson, and you’d have a good time with Marshall.”

Related graphic:

Vital Signs
Tenure, productivity, and dissent on the Supreme Court.

Roberts believes that Marshall’s temperament and worldview came from his experiences as a soldier at Valley Forge, where he developed a commitment to the success of the nation. “Some have speculated that the real root of Marshall’s ill feeling to Jefferson was that Jefferson was not at Valley Forge, was not in the fight, and had what Marshall might regard as a somewhat precious attachment to ideas for the sake of ideas, while Marshall was more personally invested in the success of the American experiment.”

Roberts decided early in his first term to embrace Marshall as a model. “Once you’re here you don’t immediately think you’ve got to be like Oliver Ellsworth,” he said, laughing. (Ellsworth, the chief justice from 1796 to 1800, was one of Marshall’s obscure and forgotten predecessors.) If you want to become “a competitive bicyclist, you’re going to wonder how Lance Armstrong did it—you’re not going to pick somebody else.”

Roberts said his decision to embrace Marshall’s vision was a reaction to “the personalization of judicial politics.” During Marshall’s thirty years as chief, “there weren’t a lot of concurring opinions. There weren’t a lot of dissents. And nowadays, you take a look at some of our opinions and you wonder if we’re reverting back to the English model, where everybody has to have their say. It’s more being concerned with the jurisprudence of the individual rather than working toward a jurisprudence of the Court.” Roberts praised justices who were willing to put the good of the Court above their own ideological agendas. “A justice is not like a law professor, who might say, ‘This is my theory … and this is what I’m going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area,’” he explained. Instead of nine justices moving in nine separate directions, Roberts said, “it would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record.”

Despite his concern about separate opinions, Roberts was proud of his relative success in encouraging unanimity, especially in less visible cases. He seemed especially frustrated, therefore, by the media’s focus on the number of high-profile 5–4 decisions and the shifting coalitions that had determined them. “There was a question from one of these [tour] groups that come in here: ‘How do you decide who’s going to be the swing vote?’” Roberts laughed and shook his head. “I don’t know, we rotate. That has to undermine—that’s a steady wasting away of the notion of the rule of law, a personalization of it.” He acknowledged that he was “kind of put out” by some of the media emphasis on divisions on the Court. “We had more unanimous opinions announced in a row than ever before … in the modern era … but in the first 5–4 decision, people are writing, ‘So much for unanimity.’” Roberts said it was a bad thing that, at the end of each term, commentators published graphs and charts about who on the Court agreed most often with whom [for an example, see opposite page]. “It is such an egotistical analysis of the Court,” he lamented. “The whole notion that it’s functioning as a Court doesn’t seem to appeal to anyone … I think it’s bad, long-term, if people identify the rule of law with how individual justices vote.”

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Jeffrey Rosen is a professor of law at George Washington University.

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