John Roberts-HLB Fall 2015

Versatile and Nimble

Credit: Steve Pyke/Contour/Getty Images

Chief Justice John G. Roberts Jr. ’79, a masterful manager

Sept. 29 of this year marked the 10th anniversary of the day Chief Justice John G. Roberts Jr. ’79 took his seat on the U.S. Supreme Court. At the time of his appointment, he was the youngest justice on the Court. Nonetheless, right from the start, his leadership has shown mastery and deft management—not only of the Supreme Court but also of the federal judiciary.

This initial decade of his service prompts many commentators to venture assessments about the Court’s direction. Rough tallies of the outcomes and tilt of high-profile decisions provide the focus. Here, the work of Chief Justice Roberts defies simplistic summary. During the past decade, the Court—with the Chief in the majority—has restricted campaign contribution limitations and voting rights enforcement. Writing for the Court, he rejected the use of race to assign students to public schools. Yet, led by the Chief Justice, the Court also has upheld, twice, President Obama’s health care reform. His opinion for the Court bars judicial candidates from directly soliciting donations. He joined the majority in ensuring physical accommodations for pregnant workers. He wrote for the majority that police officers do not necessarily violate a person’s constitutional rights when they stop a car based on a mistaken understanding of the law, but he also joined the Court’s majority in denying police the authority to detain and search drivers during traffic stops. His opinion for the Court protected freedom of speech by protesters on a public sidewalk near a funeral, and he has joined many other decisions strengthening protections for freedom of expression.

Chief Justice Roberts does not always agree with the prevailing rulings. He joined dissenters when the Court extended constitutional protection for marriage to couples of the same sex. He similarly joined the dissent when it offered broad deference to agency interpretations of their own jurisdiction and when it rejected a challenge to a state’s refusal to issue license plates decorated with the Confederate flag.

As he indicated during his confirmation hearing before the Senate Judiciary Committee, Chief Justice Roberts’ decisions are not likely to etch a consistent political agenda. His decisions apply and interpret the Constitution and statutes with great learning, precision, and discipline. His opinions and his votes provide considerable evidence that he tries to act impartially and with restraint, as he told the Senate he would. He testified at his confirmation hearings: “I think it is a very serious threat to the independence and integrity of the courts to politicize them. I think that is not a good development, to regard the courts as simply an extension of the political process. That’s not what they are.” These views help to explain why this Chief Justice has often defied expectations—and generated criticisms from both conservative and liberal Court-watchers. Chief Justice Roberts also told the Senate during the confirmation hearings that the Court and the nation are served better by unanimity than by closely divided decisions.

John Roberts and Other SC Justices-HLB Fall 2015 (Getty Images)

Credit: Larry Downing-Pool/Getty Images “Chief Justice Roberts reveals a sense of proportion and modesty about the Court and his role, traits that do not always accompany impressive and talented people in positions of great power.”

Credit: Steve Pyke/Contour/Getty Images

Chief Justice Roberts reveals a sense of proportion and modesty about the Court and his role, traits that do not always accompany impressive and talented people in positions of great power.

As chief justice, he can nudge the Court in this direction. He can contribute to the tone and even to results by framing discussion during the private justices’ conference and by assigning the drafting of opinions when he is in the majority (and assigning the drafting of dissents when he falls on that side). For example, he can assign the drafting of an opinion to a justice—including to himself—who is likely to write a narrow or modest opinion rather than a broad and sweeping one. Chief Justice Roberts has used these opportunities to promote greater consensus. Neal Katyal, former acting U.S. solicitor general, commented in a recent story in USA Today: “The signs thus far point to something that we have seen emerging over the past few years—that the chief justice is truly fashioning the court into his own image. … There is less ideology and more unanimity.”

An outstanding appellate lawyer before joining the bench, Chief Justice Roberts prevailed in 25 of the 39 cases he had argued before the Supreme Court while in practice, and he represented plaintiffs and defendants, corporations and indigent individuals. In high school, he served as halfback, linebacker and captain of the football team. On the Court, he leads with versatility and nimbleness, mindful of the different roles and ongoing relations of justices, advocates, and parties. Chief Justice Roberts has cautioned against rhetorical excesses and “tar[ring] the political branches with the brush of bigotry.”

One aspect of his role seldom seen by the public involves overseeing the entire federal judiciary. He chairs the Judicial Conference. There, the chief judges of each court of appeals, district court judges from each regional judicial circuit, and the chief judge of the United States Court of International Trade develop national judicial administrative policies, recommend legislation and rules of procedure and evidence, devise case management and electronic access to court documents, and oversee surveys of judicial business.

In his 10 annual reports to Congress thus far, Chief Justice Roberts has outlined improvements in judicial administration and efficiency including cost-containment measures both before and following the economic downturn. These reports also have shown his deep immersion in history. They also manifest his steady attention to preconditions for judicial integrity and independence “to fulfill the Framers’ vision of a judicial branch with the strength and independence ‘to say what the law is,’ without fear or favor. Marbury v. Madison (1803).”

Chief Justice John G. Roberts Jr. ’79

Credit: Larry Downing-Pool/Getty Images

His historical references can be poetic. He reflects on efforts by the Smithsonian Institution (he chairs the board of the world’s largest museum complex) to preserve the American flag known as the Star-Spangled Banner: “This tattered flag nevertheless inspires deep reverence. Why? Because it speaks eloquently to the sacrifices of every American who has contributed to the preservation of the United States.” His comments can also be vivid, as in his description of the experience of moviegoers during the Great Depression:

“In 1935—in the midst of the Great Depression—many Americans sought respite from the Nation’s economic troubles at their local movie theaters, which debuted now-classic films, such as Mutiny on the Bounty, Top Hat, and Night at the Opera. Moviegoers of that era enjoyed a prelude of short features as they settled into their seats. As the lights dimmed, the screen beamed previews of coming attractions, Merrie Melody cartoons, and the Movietone newsreels of current events. The 1935 news shorts also provided many Americans with their first look at the Supreme Court’s new building, which opened that year.”

His reports give hints of a droll sense of humor: “New Year’s Day in America means football, parades, and, of course, the Year-End Report on the Federal Judiciary.” In this comment, as when he traced public awareness of the majestic Supreme Court building to the short movie features watched by moviegoers escaping from the Depression, Chief Justice Roberts reveals a sense of proportion and modesty about the Court and his role, traits that do not always accompany impressive and talented people in positions of great power.

Although clearly not a favorite topic, the low salaries for federal judges figure prominently in his reports to Congress. He notes the large number of judges leaving the bench for private practice due to financial need. This trend risks undermining the experience, diversity and independence of the judiciary. He observes how the cost of modest salary increases for judges would be “miniscule” in comparison with what is at stake. His year-end reports honor the thoughtfulness and decency of those serving the judiciary. He points to retired senior judges, who, without extra compensation, carry caseloads—much needed, especially in overburdened districts. (After these reports, judicial salaries did rise.)

In 10 years at the Supreme Court, Chief Justice Roberts has drawn upon the lessons from his distinguished private practice and his public service as a special assistant to the attorney general, as associate counsel to the president, as principal deputy solicitor general, and as a judge on the Court of Appeals for the District of Columbia Circuit. There have been 44 presidents but only 17 chief justices of the United States. Chief Justice John Roberts has made his alma mater very proud.

Martha Minow is the Morgan and Helen Chu Dean and Professor at Harvard Law School.