John Roberts’s Chance for Greatness

As Kavanaugh tips the Court further to the right, the chief justice will have to decide whether the Court will dictate social policy from the bench.

Chief Justice John Roberts
Jim Bourg / Reuters

Among Chief Justice John Roberts’s many talents is an ability to mask ambition. Though conversational in chambers, about the day’s headlines or the Notre Dame game over the weekend, he is by nature reticent. Law clerks don’t feel they get to know him as well as, say, Justices Clarence Thomas and Stephen Breyer. So a few years ago, when the chief let his guard down, the moment astonished his listeners. And it revealed a hunger for greatness that went along with an abiding affection for the institution he leads.

I heard the story while reporting my book on the Supreme Court, The Most Dangerous Branch. I interviewed the majority of the justices, and 65 law clerks, all on condition of anonymity; neither the justices nor their clerks typically speak on the record about the Court's proceedings. And I gave all the justices the opportunity to comment on what would be written about them.

Several clerks, the story went, were taking Roberts to lunch a few blocks from the Court. On the way, one innocently asked, “How do you like the job?” Instead of responding with a platitude like “It’s the privilege of a lifetime,” he offered a telling response. Roberts began by reminding the clerks that there had been only 16 men before him who had occupied the center seat on the bench. In that sense, he was delighted to be No. 17.

But Roberts understood the history of the Court and of the nation. Even among the chiefs, he observed, there had been only one John Marshall, who served for 34 years at the beginning of the 19th century and wrote the seminal Marbury v. Madison decision, which established the Court’s power. Marshall “had the opportunity to decide the great questions because the Constitution was undeveloped,” Roberts told the clerks.

“It’s not like that anymore,” he said. “I was born in the wrong era.”

Perhaps not, but the chief may yet have the chance to be great. With Brett Kavanaugh just confirmed as the newest justice, Roberts, at 63, will still be the fourth-youngest member of the Court. If he serves until he’s 80, he won’t reach the halfway point of his tenure until 2020. Assuming Kavanaugh does veer the Court further to the right, on many issues Roberts will be the new swing justice, replacing Anthony Kennedy in the middle. The newly constituted Court will truly be the Roberts Court.

Roberts already seems to appreciate what greatness in his own time might look like. His votes in cases on gun control, campaign finance, and the Voting Rights Act of 1965 were indeed injudicious intrusions on democracy and ran counter to his exhortations about how issues such as same-sex marriage ought to be left to other branches of government. But in 2012, in the signal case of Roberts’s time on the Court—on the fate of Obamacare—the chief justice proved himself a worthy descendant of Marshall. That’s not because Obamacare necessarily was wise social policy (I happen to think it was), but because the chief correctly recognized that the proper role of the Court wasn’t to resolve that question.

As the decisive vote in the 5–4 ruling that upheld the Affordable Care Act, Roberts kept the Court out of the political maelstrom. The ACA was the key policy achievement of Barack Obama’s presidency. Opponents of the statute—those who had lost out to democracy, in the legislative debate—went to federal court to undo the law. Lower courts disagreed on the constitutionality of its so-called individual mandate, which required most Americans to have health insurance or pay a penalty. (Congress ultimately repealed the mandate in late 2017.) The justices agreed to step in. Had the justices invalidated the law, the Court could well have become the overriding issue in the 2012 presidential election. Roberts saw the institutional toll that might have taken on the Court.

The constitutionality of the mandate turned on two questions: Did Congress have power under the Commerce Clause to coerce individuals to engage in specific activity? And could the ACA’s penalty qualify as a “tax” that could be levied under the Constitution’s Taxing Clause? Most constitutional experts thought the first answer was easy: yes. That rendered a second answer unnecessary. But the oral arguments at the Court in March 2012 showed otherwise.

At the justices’ private conference on March 30, two days after arguments, Roberts took his seat at the head of the oblong walnut table at which the justices vote on cases. It was Marshall’s portrait that hung center stage above the black marble fireplace in the room. The chief liked the idea of Marshall gazing down at the current justices. Roberts outlined the difficult questions raised. He carefully acknowledged competing positions on the tax question. But he was certain the mandate violated the Commerce Clause, so he voted to strike down at least that part of Obamacare, concluding as well that the Taxing Clause couldn’t save the mandate. Since the rest of the justices were split, 4–4, Roberts would be the decider. He assigned himself the opinion.

However, that’s where the story line got fuzzier. Based on Roberts’s vote, the other justices, immediately after the conference, walked back to their respective chambers and reported to their clerks that the Court was throwing out the most important piece of social legislation in two generations. Clerks reacted predictably—with elation or despair. But Roberts had doubts on the Taxing Clause, even if he didn’t trumpet them in the conference. Votes there are tentative. Justices may reevaluate if they discover “the opinion doesn’t write.”

That’s what happened to Roberts during the next two months. He instructed two different clerks to write alternative drafts of an opinion, the different outcomes turning on the tax question. He finally decided that the mandate could be considered a tax and therefore was a legitimate exercise of congressional power. The Commerce Clause aspect became irrelevant. He revealed his new position to the other justices during a subsequent conference. As much as Roberts didn’t like how the ACA became law, he concluded it was constitutional. On June 28, 2012, the Court announced its decision.

It was the first time Roberts had joined the four liberals in a 5–4 vote, let alone a ruling that big. “The text of a statute can sometimes have more than one possible meaning,” Roberts wrote. “And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

Roberts viewed what he had done as diligent judging. The four other conservatives thought otherwise. Had Roberts voted initially with the liberals, the conservatives obviously would have been disappointed. But to them, Roberts had caved to external pressure. Justice Antonin Scalia vented about it in a way that surprised even those at the Court who were used to his eruptions. In private, some of Roberts’s defenders suggested he didn’t actually reverse his position, because he hadn’t committed in the first place. But internal Court correspondence and draft opinions themselves make clear he had reconsidered. It wasn’t that Roberts had decided his initial view was wrong—only that an alternative view was permissible. Because that alternative view deferred to Congress, the chief concluded he was required to adopt it.

Ever since, conservatives have smoldered over what they see as Roberts’s betrayal. These resentments were what led to Donald Trump’s fulminations against Roberts during the 2016 campaign. The conservative justices and their clerks knew Roberts had switched, and someone let word slip out. Such finger-pointing leaks were unprecedented. But the fact of the leaks reflected how much the conservative justices felt they had been duped.

The chief justice thought that Obamacare presented a close case and that Congress was entitled to the benefit of the doubt. Seeing himself as the steward of the Court’s prestige, Roberts chose to keep the Court out of harm’s way. He had failed to do so, for example, in Citizens United (the 2010 ruling that struck down campaign-finance regulations passed by Congress) and Heller (the 2008 ruling that invalidated handgun restrictions imposed by the D.C. city council). But now, at least in this one case, four months before a presidential election, he had become a judicial statesman—an advocate not for this or that issue, but for the Court itself. Maybe he was acting with the judicial humility he had often counseled for others—judicial “politics” in the best sense.

If so, in an age when the Supreme Court has become aggressively interventionist and triumphantly ascendant, Roberts’s destiny might be, as he wished aloud, to do great things. The alternative risks even further descent by the Court into partisan muck—and invites massive opprobrium from the body politic. History has proved that ends very badly for the Court.

David A. Kaplan is the author of The Most Dangerous Branch: Inside the Supreme Court, on which this piece is based. Kaplan interviewed a majority of the justices and 65 law clerks for the book, all on background. Those justices to whom Kaplan didn’t speak were given an opportunity to comment on what would be written about them.