On the hagiography of John Roberts

hag·i·og·ra·phy (noun hā-gē-’ä-grə-fē, \-jē-\): the writing of the lives of saints.

There’s been a great deal written in the last 24 hours about Chief Justice John Roberts.  And a good deal of it, some from people who usually write in fairly measured terms, is so over-the-top that you’d think the guy had just walked across open water to single-handedly rescue a drowning child and puppy.  Here are a few examples.

From Harvard law professor Laurence Tribe:

Today, Chief Justice John Roberts delivered a heroic rebuke to the growing number of Americans who feared the Supreme Court had lost the ability to rise above the narrowminded partisanship that dominates the country’s political discourse…. More than a year ago, writing in the Boston Globe, I made a simple point about the individual mandate…. Fortunately, the Chief Justice ended up articulating essentially the same common sense view despite protestations and pressure from his conservative colleagues on the Court that he approach the case more artificially….

[S]trategic thinking and a passionate commitment to reform gave Democrats under the bold leadership of President Obama the resolve to push the [health care] law through. Today, the Chief Justice took an equally bold step and did more than save the law—he saved an institution.

From NYT columnist David Brooks:

Washington is full of arrogant people who grab power whenever they get the chance. But there is at least one modest minimalist in town, and that’s John Roberts Jr…. Roberts’s decision still represents a moment of, if I can say so, Burkean minimalism and self-control…. Roberts has made a period of innovation and change more likely. He did it by taking the court off center stage and by letting the political process play out.

Self-restraint. It’s a good thing. More people should try it.

Chris Matthews, waxing poetic on MSNBC:

Today’s hero: Chief Justice John Roberts, who walked to the forefront of history and said yes to progress, and no to the role prescribed for him by the right.  He would not be the man – he would not lead the Court, he would not let the Court named for him carry historic blame for denying health care to tens of millions of Americans.  He would not be the ramrod for yet another right-leaning, partisan-appearing Supreme Court ruling that would have been the third strike over the plate, following Bush/Gore and Citizens United.

From George Washington law prof Jeffrey Rosen:

The reason I use the word “courageous” for Roberts, and will absolutely use it again, is because he made the vote not on the basis of his political inclinations, but his vision of the role of the Court in American society.  He did not want the Court to be like Congress and the President, all of whom are at each other’s throats.  He thought it;s important for judges to act like judges and not to divide along party lines.  And it was courageous because there’s huge pressure not to do that, from the blogosphere, from the political system.  Sure, he has life tenure, but he will get criticized by some for having taken that vote, and he did it because of his vision of his role as Chief, and I think he deserves great credit for that.

From UCLA law prof Adam Winkler:

With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president’s signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism.  Roberts peered over the abyss and decided he didn’t want to go there.

Roberts’ decision was consistent with his confirmation hearings pledge to respect the co-equal branches of government, push for consensus, and reach narrow rulings designed to build broad coalitions on the Court. He promised to respect precedent. His jurisprudence, he said, would be marked by “modesty and humility” and protection of the precious institutional legitimacy of the Court.

Today, the institutional legitimacy of the Court was buttressed. President Obama wasn’t the only winner at the Supreme Court today. So was the Supreme Court itself….

Roberts may have voted to save health care because he wants to preserve the Court’s capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next Term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America’s commitment to civil rights for over forty years.

From Columbia law prof Gillian Metzger:

The prime winner in all this is the Court.  Chief Justice Roberts avoided invalidating major federal legislation decades in the making, while underscoring that Congress’s regulatory power is not unlimited and the Court’s central role in enforcing the Constitution.   True, Roberts achieved this result only with some analytic fudging — Justice Ginsburg is right that the Court should not rule on the commerce power if upholding the mandate as a tax, as well as that the commerce power ruling is not consistent with precedent.  But from the perspective of the Court, that seems a small price to pay for a decision that preserves its institutional stature and authority.  It’s our modern-day Marbury v. Madison.

From Georgetown law prof Dan Ernst:

I would be very surprised if Roberts was not moved by the same concern for legitimacy of the institution over which he and [former Chief Justice Charles Evans] Hughes have presided.  Although he could not bring Justices Alito, Kennedy, Scalia or Thomas with him, he nonetheless avoided what Jeffrey Rosen of the George Washington University Law School called on Thursday’s Diane Rehm Show “the kind of partisan, polarized, five-to-four, Republicans-versus-Democrats” outcome that was the great “fear of many people who care about the bipartisan legitimacy of the Court.” … Roberts acted to preserve the legitimacy of the Supreme Court.  Hughes would have understood and approved.

From this roundup assembled by Herald reporter Matt Stout:

Conservative Chief Justice John Roberts not only saved Obamacare with his blockbuster opinion upholding the president’s sweeping health care law, he may have saved the Supreme Court’s rep, according to experts and former colleagues, who said the Harvard grad has never let politics tint his rise into the country’s top judge….

Harvard professor Einer R. Elhauge said it was no coincidence Roberts was the swing vote, calling him “the most economically sophisticated one out of the conservative justices.”

And there’s plenty more along similar lines.

Personally, I think we’re venturing into dangerous territory here.  Of course, in a small-picture sense, I’m happy that the Court upheld the health care law, but that’s because I think the law is clearly constitutional, and therefore I think that a contrary decision would have been a mistake legally, as well as on balance bad for the guy I’d like to see win the presidential election.

But take a look at the bigger picture.  What is it, exactly, that these people are praising John Roberts for?  It’s all along the lines that Roberts acted to preserve the legitimacy and stature of the Court as an institution; that he saved it from an avalanche of criticism; that he showed personal fortitude by being willing to disappoint his conservative comrades-in-arms; that he preserved the Court’s capital for future controversial rulings; and so on.  And they are going further in saying that his doing so was an unalloyed good thing.  Very few are praising him for the opinion as a piece of legal analysis – and there are reasons for that (which I may get to in another post).

Good heavens.  Is that really what we want in a judge?  Someone whose principal concern is the preservation of the “legitimacy” – i.e., the power – of the institution of which he is the titular head?  Wouldn’t we rather have a judge whose dispassionate analysis of the case before him leads him to conclude that the law either is or is not consistent with the Constitution, and issues his judgment and opinion on that basis alone?  Isn’t the whole point of conferring life tenure on judges that we want them insulated from the hurly-burly of political life so that the “huge pressure” from the “blogosphere” and the “political system,” as absurdly invoked by Jeffrey Rosen, doesn’t affect their decisions?  I mean, if Roberts actually believes the law is unconstitutional, but voted to uphold it anyway, he surely has violated his oath of office.  My friend and co-blogger Bob will no doubt ridicule my Pollyanna-ish view of these things, but it does seem to me that if the Court’s sole concern is not the meaning of the Constitution and the statutes that come before it in cases and controversies, then there’s not much point in having the institution around at all.

Yet another wrinkle is emerging from the ranks of Supreme Court wonks, among whom speculation is running rampant that the dissent was originally a majority opinion, and that Roberts changed his vote late in the game (others disagree that the evidence points to a vote switch).  There’s even a hypothesis out there from a respected Court-watcher that news of Roberts’s wavering leaked out of the Court sometime in May, resulting in a full-Court press (HA! get it?) from conservative pundits.  A late-in-the-game vote switch on the Supreme Court is unusual, but certainly it has happened before.  If it happened in this case, the big question is why.  If Roberts did switch his vote, was it because he hadn’t fully appreciated the legal significance of the tax argument until some clever law clerk pointed him to BMG?  Or – much, much worse IMHO – was it because he began to perceive the immensity of the storm of criticism that would rain down upon him, his Court, and his legacy if he authored a 5-4 decision striking down the law, and he blinked?

The general public is not likely to know for a long time what really happened behind the scenes with respect to this opinion.  And I appreciate that the Chief Justice appropriately takes some responsibility for the Court as an institution in addition to the results in individual cases.  But it seems to me that that responsibility should not extend to deciding cases contrary to his view of what the Constitution requires.  Perhaps that’s not what happened – perhaps he really did think that the Commerce Clause did not allow the “mandate,” but the taxing power did.  (Though if that’s the case, why did he bother to weigh in on the Commerce Clause at all?)  It’s a perfectly defensible position (and, in fact, one that I have some sympathy with).  But to read much of the commentary, you’d think that he set aside his own views on the statute’s constitutionality because he thought he had to save the Court – and, apparently, this is widely thought to be a good thing.

That’s what worries me: if Roberts did what he did because he was worried about the Court’s reputation, rather than because it’s what he thought the Constitution required, we’re a long way down a perilous path.


17 Comments . Leave a comment below.
  1. Supreme Court

    I agree with your criticism of the law professors you quote, whose praise of Roberts is indeed over the top. But you buy into a right-wing frame of the legal process that has never been true:

    Wouldn’t we rather have a judge whose dispassionate analysis of the case before him leads him to conclude that the law either is or is not consistent with the Constitution, and issues his judgment and opinion on that basis alone?

    The notion that judges make decisions purely on “the law” is not true now and indeed has never been true, at least at the Supreme Court level. The tiny sliver of cases that get to the Court out of the many thousands filed every year represent the most difficult of all cases. Particularly in constitutional cases, where the actual text is so vague, there is often no “right” answer to a legal question. The law does not demand a decision either way. In those circumstances, it should be hardly surprising (and it is not necessarily even a bad thing) that justices make decisions on the basis of non-legal criteria.

    This is also something that is hardly new. If John Marshall and the Court made its decision in Marbury v. Madison on the basis of the best legal analysis, it would have come out very differently. Clearly Marshall was being strategic in that case — his legal analysis is weak at best. The legal reasoning in Brown v. Board of Education, such as it was, was extremely tenuous. Yet it was the right decision. So was Marbury. I think the same is true with Roberts in the health care case, at least in the sense that his legal analysis is shaky, but his strategic concerns are sound.

    The idea that the law can be completely neutral is an idea that the Right has been pushing for some time now, but it is as false now as it has ever been. Of course the Court takes non-legal considerations into account when making difficult decisions. Indeed, it should very much be aware of what is going on around them politically and socially, given that their decisions can be so monumental.

    • "The law does not demand a decision either way."

      If that’s the case, why should judges be the ones to make the call? I’m quite serious in asking this. If, in the big constitutional cases, it’s really just a political judgment, why isn’t Bob exactly correct in his desire to eliminate judicial review?

      Brown is a poor example for your thesis, IMHO. The opinion may not be the greatest piece of legal writing in history. But certainly, it was absolutely correct on the law. In that case, the law absolutely did demand a certain result.

      • Hurry!

        Freedom was born on Lexington Green and at the Concord River in 1775. No reason we shouldn’t be able to start again on this digital Green and electronic river. :-P

        Yeah, yeah. I know current thinking hasn’t evolved that far …

    • Also,

      I don’t mean to say (and I could have been clearer about this) that political/social considerations can never enter into constitutional interpretation. But there’s a difference between a “living Constitution” and making decisions that you don’t actually think are legally correct in order to preserve the power of the institution of which you are a part. If the latter is what Roberts did, would you agree it was inappropriate?

      • You raise excellent questions here

        My take on your last question is that making a decision largely on the basis of what it means for the institution is absolutely appropriate. This was exactly what happened in Marbury — Marshall made a decision that was very unlikely correct on legal grounds in order to preserve the institution. I think the famous “switch in time that saved nine” in 1937 is another example. The Court has to do this because it has the power neither of the sword nor the purse. It has only its legitimacy. That’s why the justices are wise to take it into consideration.

        On your first question, I’m quite in sympathy with the view that the Court should rarely if ever exercise judicial review to strike down federal legislation under the Constitution. This is precisely because of the problem of constitutional interpretation — it is difficult to ever come to a “right” answer on the vague parts of the Constitution (e.g., what “due process” prohibits, for example). In my view, the interpretations of Congress and the President, as constitutional branches themselves, are no less legitimate than the Supreme Court’s.

        Unlike Bob, I would not eliminate judicial review altogether (if I am accurately stating his position). I think an important role of the Court is to review state laws under the Constitution, in order to ensure too much legal fragmentation. Here, the Court’s role seems to me much less problematic (and, historically, has been far more common). It’s when it strikes down federal legislation that I’m also bothered by the question you raise in your first comment.

        • n/t

          The last paragraph should read: “to AVOID too much legal fragmentation”.

        • I am totally in favor of federal supremacy

          So state laws can be struck down. The federal system won’t work otherwise. But I think the elected branches should say what the law is, not the Supreme Court. The Court’s job should be to enforce the laws that the elected branches make. This, I submit, was the original intention of the framers, which is why judicial review, not to mention judicial supremacy, is not mentioned in the Constitution.

  2. My preferred take on Roberts's


    Roberts is conservative, but not in the same way as Justices Antonin Scalia or Clarence Thomas. He’s more of a white-shoe law firm kind of guy, which is fitting for someone who was a partner at the corporate law firm Hogan & Hartson (now Hogan Lovells). As such, he’s got some of the pragmatism of a corporate lawyer, and his sympathy for the business community’s arguments has been plain from the time he was first confirmed. (See: Citizens United.) If the US Chamber of Commerce didn’t see fit to argue that the ACA was unconstitutional, it’s not surprising that Roberts didn’t, either.

    It will take years before Roberts decision form a clear pattern. I’m hardly expert, but this mentality would fit right in with Roberts’ Citizens United ruling.

  3. courageous and bold

    when we agree, undemocratic and dictatorial when we don’t

    Maybe soon, he will earn “new respect” by pissing off the right again.

    • but but but

      I thought you in particular were the sworn enemy of partisanship, and so anything that smacks of going against partisanship, like Roberts’ decision, merits positive adjectives, like “courageous” and “bold”.


      • does everything have to be partisan?

        How about Justice Roberts did what he thought was the right thing.

        That is what I’ve been saying, sometimes when people disagree with us, they are just following what they truly believe is the right thing. I totally agree with centralmassdad in that every decision by a justice, every move by an elected official that we don’t like… seems to get turned into that person simply being a partisan hack, unless that decision lines up with our ideology and then it becomes wisdom, courage, bold…

        • Does everything have to be partisan?

          In the world of pure logic, no.

          In the world we inhabit, yes.

          Consider, if you will, the global warmer denier. The typical global warming denier believes that there is a massive conspiracy among scientists to lie about climate change. This massive conspiracy infects every university and every country that has universities. One can only hold such an outlandish view if one were deeply blinded by partisanship and a robust majority of Republicans do indeed hold this outlandish view.

          Similarly, evolution denial.

        • Plus

          Centralmassdad has a developed view on the role of partisanship in our polity. I thought I understood what that view was. My “but but but” comment wasn’t an objection so much as a request for clarification: I don’t understand how his comment is consistent with his view, and I expect to learn from him how they are consistent.

  4. I thought we already killed Democracy...

    when we voted for Only Elizabeth Warren to be on the ballot in the fall. Seriously, how much longer will it take for Democracy to die already (Sarcasm intended).

  5. When you do the unexpected from a partisan/ideological standpoint...

    …you are one step closer to statesmanship. I’m not one to hyperventilate, but what the Chief Justice did IS significant. Unfortunately I think the reason it is so newsworthy is precisely because we’ve gotten so used to justices lining on predictable sides. If more justices were less predictable Roberts’ actions in this case would be unremarkable. I think legacy is valid; certainly Marshall and Warren thought about it quite a bit. In a system where the people are expected to have input, the least popular (in terms of directly democratic) must find other ways to secure their legitimacy in the eyes of the governed.

  6. courageous and bold/ undemocratic and dictatorial

    Is that how we feel about Anthony Kennedy’s career on the bench?

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