How John Roberts could craft his legacy as US Supreme Court chief justice

The chief is in charge.
The chief is in charge.
Image: Reuters/Joshua Roberts
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Love him or hate him, US Supreme Court chief justice John Roberts is the most powerful judge in the nation. That didn’t happen by chance. 

When he was just 13 years old, Roberts wrote a letter to the head of the then new posh La Lumiere boarding school in Indiana—a Midwest institution meant to compete with the elite schools of the East Coast—saying he has “always wanted to stay ahead of the crowd” and that he wouldn’t be content with just a good education and a good job. “I want to get the best job by getting the best education,” he wrote neatly in cursive.

With this impressively determined missive, longtime Supreme Court reporter Joan Biskupic begins her new biography of Roberts, entitled The Chief: The Life and Turbulent Times of Chief Justice John Roberts. The book tries to make sense of the contradictions in this extremely reserved, seemingly mild-mannered high-powered attorney, who has infuriated liberals and conservatives alike. But Roberts isn’t easy to understand because he, like most people, isn’t consistent on the bench or in life.

That’s precisely what annoys his detractors and made the author’s job more difficult. Take, for example, the fact that Robert spent many hours speaking to Biskupic for her book and facilitated interviews with his family and friends, yet refused to speak on the record himself—this from a chief who chides associate justices on the high court when they resort to information that’s not strictly in the legal record to make a point (though he does so occasionally, too). Roberts knows the record is everything when it comes to the legitimacy of a text or an appellate argument. However, he told Biskupic it’s too early for him to opine on his tenure as chief.  

Politics and office politics

Biskupic’s book shows how the high court is in some ways a job like any other, with the usual office politics. Justices are in a perpetual state of negotiation, trying to get their colleagues to align with their views on legal issues, which means Roberts has to keep the peace and—in his own words—not “pick fights.” But they are also people who get irritable and have egos and complain to their coworkers about assignments, which means complaining about Roberts, as it is traditionally the chief who assigns opinions on the high court and reserves the right to write the majority decisions himself.

As the boss, Roberts speaks first at meetings with the justices and is in charge of handling administrative matters. And Biskupic argues that Roberts is acutely aware of the distinction between him and colleagues, many of whom were on the high court before him. After Roberts joined the institution, he made it a point to distinguish between himself and “the crowd.” It used to be that when a new justice was appointed, they’d be introduced based on a count of all the previous jurists on the bench; now the count distinguishes between associate justices and chiefs instead of counting all newcomers equally. 

Roberts is the seventeenth chief, and there have been 102 associate justices. He sees his role as a kind of diplomat for the high court. In his public pronouncements, he argues that the court is an apolitical branch of government. In a speech in October at the University of Minnesota, he said: “We do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation.”

The chief believes it’s extremely important for the public to trust the justices and understand that they interpret law but never make it. For example, last year, when president Donald Trump was unhappy with a Ninth Circuit court decision and called it an opinion by an “Obama judge,” the chief justice took the extremely uncharacteristic step of publicly rebuking the commander in chief, saying, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

That said, Roberts has sometimes made it hard to believe the claim of impartiality himself. He was a lawyer in president Ronald Reagan’s conservative administration and also served president George H.W. Bush. He has presided over a court that certainly appears political, with decisions often split along conservative and liberal lines. And while has has, on occasion, surprised—like in December when he joined the liberals in deciding to deny review of two cases (paywall) involving Planned Parenthood and incensed his conservative colleague Clarence Thomas—Biskupic writes in the biography that he won’t become a swing vote like Anthony Kennedy, as many court commentators predicted, because she believes he’s more committed to conservative causes than he lets on. 

Finding the middle ground

Roberts has long expressed his aversion to affirmative action policies and his perspective on race boils down to a single phrase, which he repeats often, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” He has contended that a preoccupation with racism perpetuates racism. In essence, he’s touting a “color blind” America.

But many of his colleagues have argued that centuries of systemic racism, slavery, and segregation make it impossible for everyone to simply be equal, without institutional efforts to even the score. This is something Sonia Sotomayor in particular feels strongly about, which annoys Roberts, according to Biskupic.

The chief justice doesn’t love being reminded of the fact that his experience of the world isn’t quite universal. When Sotomayor supports affirmative action policies, explaining the ways she was able to benefit from such programs as the child of immigrants in the Bronx, Roberts gets miffed. He doesn’t like her personal story informing her legal interpretations, Biskupic recounts. The chief wants associates to stick to the legal record.

But Biskupic is ultimately hesitant to predict what will happen in years to come on the court because saying Roberts plays his cards extremely close, according to his close friends. No one really knows which way he will lead the justices. He may choose, as he did in 2012 when he was the deciding vote in upholding Obamacare, to lead the justices to compromises that aren’t necessarily in line with his usual conservative ideology. Or he may not.

One thing is clear, however, in these polarized times, in a nation ideologically divided to an extreme degree, reaching agreements and brokering compromises would make him a visionary leader. So if Roberts really wants to stay ahead of the crowd now, he will need to be the chief who finds the middle ground.