Assessing Chief Justice John Roberts at Mid-Term: Why He Deserves Kudos for his Ability to Lead the Supreme Court to Speak In One Constitutional Voice

By DOUGLAS KMIEC
Monday, Feb. 19, 2007

During his confirmation hearing, the Supreme Court's new Chief Justice, John Roberts, endorsed the Court adopting a lower profile -- on the ground that, as Roberts explained, "nobody ever went to a ballgame to see the umpire."

Since joining the Court, Roberts's own profile, however, has been anything but low. Indeed, he is uniformly acknowledged to be a man of charm and grace, a fact made abundantly plain by a good many public appearances. In recent months, the Chief Justice gave an extensive interview to best-selling author Jan Crawford Greenberg of ABC News, participated generously in a thoughtful WNET-produced special on the Supreme Court that is airing nationally on PBS, and granted an interview, in which he spoke with remarkable candor, for a feature in the Atlantic.

Of course, there is only so much time even in a Chief Justice's day and Slate's Dahlia Lithwick sees a direct relationship between the Court's taking fewer cases and "the justices suddenly seeking media exposure like Paris Hilton."

Lithwick's Hilton quip is likely only half-serious, but it prompts a question: How well is the new Chief-umpire doing, midway through his second term?

In a word, splendidly -- as I'll explain below. Roberts's conscientious (and really quite slight) reduction in the caseload has received quite a bit of press, but it is merely one aspect of the way in which he has made judicial modesty tangible.

Roberts's Key Achievement: Targeted Resolutions Promoting Unanimity

The Court receives upward of 8500 petitions each year, and this term, as in years previous, it will likely hear full argument in 70 or so. What will be different, however, is that under Roberts's leadership, the Court is more likely to reach unanimity, or near-unanimity, in those cases.

Perhaps the Chief's most helpful on-the-job elaboration of his confirmation message of restraint is his giving emphasis to the understanding of the Supreme Court as "an institution more than the sum of its membership." The Court is not a law faculty where creative theories abound, he notes. Rather, the Court adjudicates concrete disputes in order to both resolve the case before it, and enhance the law's clarity.

Striving to consider only cases for which there is a bona fide legal (as opposed to political) answer, Roberts achieved unanimity in over 49% of the cases in his first year, and is similarly on track today. In 14 decided cases, 11 of the votes were unanimous or nearly so.

Now, unanimity for its own sake is not a good, but the fact that it is often a proxy for careful, precise resolution is highly desirable. The point is not to narrow issues to mere technicalities, but rather to resolve actual disputes and divergences among the lower courts without pre-judging issues that warrant further briefing and consideration in the future. Unanimity of this sort adds both credibility and stability to the law, by advancing it incrementally, rather than in ill-considered leaps.

Where the lower courts are in basic agreement and Congress isn't passing laws (or the President disregarding them) in a manner that threatens basic liberties, it is wise for the Court to let the hot issue du jour work itself out in the political process. Unfortunately, the posture of the Court from Earl Warren onward has not been nearly so prudent. The consequence has been highly-fractionated opinions prematurely taking on large, unwieldy social topics -- a result neither good for the self-governance of the republic, nor for the legitimacy of the Court.

To be sure, sometimes the political process itself malfunctions and the Court, as Madison anticipated and Chief Justice John Marshall held, must step in to say "what the law is," and to be the guardian of fundamental right as in Brown v. Board of Education. Thankfully, these occasions are, and should be, rare.

A Few Example From Roberts's Prudent Docket -- and a Key Contrast With Europe

For the most part, we should expect the justices to do lawyers' work, not to be scouting out potential landmark rulings. Fortunately, the Roberts docket is so configured -- with a lawyer's, not a policy guru's, sensibility.

Take just a few examples: This year, the Court decided in BP America Production Company v. Burton that an administrative order could recapture underpaid royalties on the basis of a textual distinction between a "cause of action" that would have been barred by the statute of limitations and an administrative order that was not; in Carey v. Musladin, that a murder conviction is not to be undone because the victim's family attended the trial wearing a button in his memory; in Gonzales v. Duenas-Alvarez, that resident aliens aiding and abetting auto theft can be deported every bit as much as those doing the thieving; and in MedImmune, Inc. v. Genentech, Inc., that patent disputes can be brought as soon as they are concrete, without forcing related licensing contracts to be formally breached. From these examples, one can easily see why Iraq and Scooter Libby have not been knocked off the front page.

Roberts is fond of contrasting his Court with the Constitutional Courts of Europe, which are often populated by politicians and professors using these venues to press pet ideas. In America, the Supreme Court is a court of law, not politics, and the written Constitution is a legal document to be construed, not judicially amended.

The Hot-Button Cases Will Test Roberts's Nonpartisan Restraint

In his recent book, The Most Democratic Branch, Jeffrey Rosen proposes that the Court should generally decide cases in accordance with the public consensus. This is an arguable proposition, and one somewhat subversive of the rule of law. Professor Rosen's stronger point is a more limited one: He contends that the Court is at its weakest when it imposes its view unilaterally upon a nation in mid-conversation over sensitive, uncertain subjects. This notion of bipartisan (perhaps, better labeled "nonpartisan") judicial restraint seems attractive to Roberts,since it cautions justices against using their favorite interpretative methods to inject their liberal or conservative ideologies into some of the Constitution's most indeterminate and sweeping terminology.

That self-control will be sorely needed this term when the Court opines on the federal partial-birth abortion limitation; several challenges to the use of race for diversity in grades K-12; administrative authority pertaining to global warming; and the funding of the President's faith-based initiative. Unanimity here will be hard to find, but Roberts has already disclosed his game plan for encouraging his colleagues toward rulings, whether for or against these matters, that are sufficiently clear and unified.

A helpful part of this strategy is discouraging superfluous or mischievous concurrences, or at least, keeping them to a minimum. If what a Justice is doing in a concurrence is unnecessarily opining on an issue not before the Court, silence would most always be more prudent, until the Court as a whole has a chance to consider that issue within the clarifying context of a particular case. So too, a concurrence designed to shade or qualify the meaning stated by the majority more often than not reflects incomplete deliberation inside the Court and invites unnecessary litigation.

Of course the Chief Justice cannot mandate his colleagues to find consensus, but Roberts is proving a master of indirect influence toward this end. For example, unlike his predecessors, he is strongly promoting that avoidable disagreements be resolved in the Court's internal conference -- not aired in warring, and often unnecessarily personal and provocative, passages or footnotes in an opinion. As Jan Crawford Greenburg reports in her remarkably revealing volume, Supreme Conflict, such sniping invites understandable, but regrettable, personal affronts to affect judicial outcomes. Justice O'Connor told Greenburg: "I do not like having strong, as almost abusive language used in appellate decision-making. I think it does not help a collegial process."

If diplomacy fails, Roberts, as Chief, can always assign the opinion writing to himself -- at least when he is in the majority. And if all else fails, he might lobby for a page limit on opinions. Under the rules of the Court, advocates are limited strictly to 50 pages. The Court's excursions into discussions of the war powers of the President and of campaign finance have been three to four times as long as that.

Roberts has wisely set out to help his colleagues "speak with one voice." At mid-term, he seems to be succeeding, and that success, is a strong affirmance of the intended role for the federal judiciary under the Constitution.


Douglas W. Kmiec is the Chair & professor of constitutional law at Pepperdine University and the former head of the Office of Legal Counsel to Presidents Reagan and George H. W. Bush.

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