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.

Promoting unanimity will not be an easy task, Roberts acknowledged, after years of “the personalization of judicial politics.” He said that he had to emphasize the benefits of unanimity for individual justices, in order to influence what he called the “team dynamic.” “You do have to [help people] appreciate, from their own point of view, having the Court acquire more legitimacy, credibility; [show them] that they will benefit, from the shared commitment to unanimity, in a way that they wouldn’t otherwise,” he said. Roberts added that in some ways he considered his situation—overseeing a Court that is evenly divided on important issues—to be ideal. “You do need some fluidity in the middle, [if you are going] to develop a commitment to a different way of deciding things.” In other words, on a divided Court where neither camp can be confident that it will win in the most controversial cases, both sides have an incentive to work toward unanimity, to achieve a kind of bilateral disarmament.

Marshall’s example had taught him, Roberts said, that personal trust in the chief justice’s lack of an ideological agenda was very important, and Marshall’s ability to win this kind of trust inspired him. “If I’m sitting there telling people, ‘We should decide the case on this basis,’ and if [other justices] think, ‘That’s just Roberts trying to push some agenda again,’ they’re not likely to listen very often,” he observed. “Marshall could easily have got on the Court and said, ‘I’m the last hope of the Federalists—we’re out of Congress, we’re out of the White House—and I’m going to pursue that agenda here.’ And he would have not only damaged the Court but could have smothered it in the cradle. But instead he said, ‘No, this is my home now, this is the Court, and we’re going to operate as a Court, and that’s important to me,’ and as a result he made the Court the institution that it has become.”

People naturally tend to focus on the controversial cases, but Roberts says he has tried to promote unanimity in less high-profile cases, too. “It’s not just on the tough cases. And it’s easier to do it if you get into the habit of doing it as a matter of routine.” In the less visible cases of the term, he says, he has tried to develop “a culture and an ethos that says ‘It’s good when we’re all together.’” He added that even smaller cases can provoke fierce initial disagreements. “Just because a case ends up unanimous doesn’t mean that’s how it started,” he emphasized. “The vote may be divided in conference, and yet if you think it’s valuable to have consensus on it, you can get it, and … once you do it in a little case, you can move on” to get it in big ones.

Roberts said he intended to use his power to achieve as broad a consensus as possible. “It’s not my greatest power; it’s my only power,” he laughed. “Say someone is committed to broad consensus, and somebody else is just dead set on ‘My way or the highway. And I’ve got five votes, and that’s all I need.’ Well, you assign that [case] to the [consensus-minded] person, and it gives you a much better chance, out of the box, of getting some kind of consensus.” He acknowledged that this approach might be perceived on the Court as a more controversial use of the assignment power than Chief Justice Rehnquist’s stated policy of punishing only those justices who were slow in producing opinions. Roberts’s colleagues were likely to understand a neutral policy that denied them new assignments when they were late with opinions, he said, but they might well object if they felt that he was giving the plum assignments to those justices who agreed with him. Roberts wanted to make clear that he would instead reward those who write opinions in ways that might attract more votes, regardless of their ideological orientation.

Rehnquist was famous for running a briskly efficient conference, but Roberts said that his own vision of unanimity sometimes requires longer discussions. “There’s a lot less flexibility once something is in writing,” he said. According to tradition, each justice speaks once, in order of seniority, before anyone can speak for the second time, but as the moderator, Roberts can shape the discussion by the way he frames the issues in a case, inviting responses to particular points. He finds that the hardest work he does is deciding “how you present a case and what you say it’s about,” he said. “I have a short amount of time, for sometimes very tough cases, to figure out how to present this that will make it most useful to the conference.” To encourage consensus, Roberts often tries to define the principle in question as narrowly as possible. “In most cases, I think the narrower the better, because people will be less concerned about it,” he said.

John Marshall’s experiences as the oldest of fifteen unruly siblings may have had something to do with his penchant for winning unity and consensus. I asked Roberts whether anything in his own background would account for his interest in bringing people together. He said he hadn’t thought about it before, but he recalled that his father, an executive at Bethlehem Steel, “was most known for his willingness to work with unions, at a time [when] there was a lot of enmity … between management and the unions.” John Roberts Sr., his son recalled, would “show up unexpectedly at the union hall, buy a round of drinks for the people in the union.” In the 1960s and ’70s, when the Japanese were the great economic threat to the steel industry, Roberts’s father insisted that union leaders accompany management executives on a trip to Japan, so that both sides could personally evaluate the competition. “I would say that’s a general view of bringing a broader degree of consensus … than his peers might have adopted,” Roberts said.

In high school at La Lumiere, a Catholic boarding school in La Porte, Indiana, John Roberts Jr. was known for his leadership skills—he was captain of the football team—and for his academic ability, which he cultivated with a light touch. His elementary-school principal, in an interview with The Christian Science Monitor, recalled that Roberts was “an outstanding student, but very quiet, low-key, never lorded his intelligence over others.” Roberts downplayed the idea that he learned leadership skills in elementary or high school: “It’s kind of an unusual situation, where there are twenty-five people in the class,” he said modestly. He acknowledges that his undergraduate thesis at Harvard about the failure of the British Liberal Party in the Edwardian era may have reflected his early suspicion of the politics of personality. “My central thesis with respect to the Liberal Party was that they made a fatal mistake in investing too heavily in the personalities of Lloyd George and Churchill, as opposed to adopting a more broad-based reaction to the rise of Labour; that they were steadily fixated on the personalities.” But Roberts insisted that his most formative experiences were as a Supreme Court advocate and as an appellate judge.

“You’re always trying to persuade people, obviously, as an advocate,” he said. “And I do find, I did find, that you can be generally more successful in persuading people, in arguing a case [when you] go in with something that you think has the possibility of getting seven votes rather than five. You don’t like going in thinking, ‘Here’s my pitch, and I’m honing it to get five votes.’ That’s a risky strategy,” he said with a laugh. As an advocate, Roberts prided himself on having represented both sides of an issue—liberal and conservative, government and industry— and this increased his belief in the importance of a bipartisan vision of law. “I do think it’s extremely valuable for people to be on both sides, and I mean being in private practice and being in government, arguing against the government and for the government,” he said. “It does give you a perspective that you just can’t get any other way, in terms of what the concerns of the other side really are. And it also gives you an added credibility, and that’s very, very important.”

The most important source of his decision to resurrect Marshall’s vision of unanimity, Roberts says, was his brief experience as an appellate judge on the U.S. Court of Appeals for the District of Columbia Circuit. “For whatever reason, it is firmly embedded [in] that court that you function as a court,” he said approvingly. “It is part of a pushback against the higher degree of politicization of the appointment process there.” In reaction to this politicization, judges on the D.C. Circuit have agreed, in Roberts’s words, “We’re not politicians; we’re judges, we’re a court, and we’re going to work real hard to be a court—partly because we don’t like people thinking we’re not, and partly because some of us had experience [on the court] in the bitter period where we weren’t.” Roberts served on the D.C. Circuit for only two years, but the experience of seeing his colleagues working to achieve consensus impressed him. “That was my first experience as a judge, and I liked the way it worked,” he said. On the D.C. Circuit, the convention was that the most-junior judge spoke first in the private conference for each three-judge panel. (On the Supreme Court, the chief speaks first.) “So I always spoke first,” Roberts said with a laugh. “And what it meant was that I kind of had to be prepared, almost like law school, to state the case from the very beginning.”

Roberts sounded frustrated that consensus was more elusive on the Supreme Court than on the appellate court. “It’s so much harder, first of all, with nine people than with three. You sit around with three people and ask, ‘Where’s the common ground?’ and it’s easy. With nine, it’s much harder. It is, whatever else, a fascinating personal psychology dynamic, to get nine different people with nine different views. It’s going to take some time,” he said. Some justices prefer arguments in writing, others are more receptive to personal appeals, and all react badly to heavy-handed orders. To lead such a strong-willed group requires the skills of an orchestra conductor, as Felix Frankfurter used to say—or of the extremely subtle and observant Supreme Court advocate that Roberts used to be.

Chief justices, Roberts acknowledged, are more likely to sublimate their personal views for the good of the Court than associate justices are; he cited the example of his former boss, William Rehnquist, for whom he clerked. “I think there’s no doubt that he changed, as associate justice and chief; he became naturally more concerned about the function of the institution,” Roberts said, pointing out that though Rehnquist had previously opposed the Miranda v. Arizona decision of 1966, which required the police to read suspects their rights, he wrote the opinion upholding Miranda in 2000. “He appreciated that it had become part of the law—that it would do more harm to uproot it—and he wrote that opinion as chief for the good of the institution.”

Another reason for Rehnquist’s success as a chief justice, Roberts said, was his temperament—namely, that he knew who he was and had no inclination to change his views simply to court popularity. “That Scandinavian austerity and sense of fate and complication,” as Roberts put it, were important parts of Rehnquist’s character, as was his Lutheran faith. “It’s a significant and purposeful mode of worship to get up in the morning to do your job as best you can, to go to bed at night and not to worry too much about whether the best that you can do is good enough or not. And he didn’t: once a case was decided, it was decided, and if every editorial page in the country was going to trash it, he didn’t care.” Roberts said he associated Rehnquist with a certain midwestern stubbornness. “Anyone who clerked for him was familiar with him intoning the phrase, ‘Well, I’m just not going to do it.’” Here Roberts did a spot-on impersonation of Rehnquist’s deadpan drawl. “That meant that was the end of it, no matter how much you were going to try to persuade him. It wasn’t going to happen.”

In the end, Roberts suggested, Rehnquist cared somewhat about building consensus, but not all that much. For example, he was willing to join opinions with which he disagreed as the sixth vote, but not as the fifth—in other words, he would compromise for the good of the Court, but only when his vote could not change the outcome. “I don’t remember [promoting unanimity] as a feature that Rehnquist stressed much,” Roberts recalled.

In deciding to resist the politicization of the judiciary, Roberts acknowledged, he has set himself another daunting task; but he said he views it also as a “special opportunity,” especially in our intensely polarized age. “Politics are closely divided,” he observed. “The same with the Congress. There ought to be some sense of some stability, if the government is not going to polarize completely. It’s a high priority to keep any kind of partisan divide out of the judiciary as well.”

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

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