No man is mightier than the institution he represents. Posterity, if not history, commemorates not the might displayed when in power, but the imprint left behind in the trail of a man’s temporary exaltation to stations of authority.
Today is the birthday of Justice John G. Roberts Jr., the sitting Chief Justice of the US Supreme Court. It would be fascinating to understand the process of functioning of a judicial mind by studying his journey so far, the judgments he wrote, and the opinions he aired.
The Supreme Court of the United States is agreed by its scholars and observers to be divided broadly between two ideologies, Conservatives and Liberals. Conservative judges have largely been appointed by Republican administrations, and Liberals by Democratic ones. And though this schism of political ideology does not explain the decision making of any Supreme Court justice, the voting records of justices do exhibit recurring patterns, which can be shown to correlate with ideology.
During his confirmation hearings, Justice Roberts professed “Judges are like umpires. Umpires don’t make the rules, they apply them.” He spoke of the importance of — and his commitment to — judicial restraint, the idea that judges should simply and neutrally apply the law rather than engage in creative law-making. He was widely praised by Senators from both parties for his intelligence, credentials, diligence, and professionalism. He assured the Senate that “I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”
It is a different matter that being proposed by a Republican President, party politics almost immediately ensured his nomination to be opposed by Democrat members. His appointment to the Supreme Court was a tortuous and tiring journey because of this continuing opposition. His initial nominations to the circuit court had failed twice.
Call it the tenacity of President George W. Bush, Justice Roberts’s own reputation, or perhaps a little assistance from the alteration of political majority in the Senate, he was confirmed as Chief Justice of the Supreme Court by a majority of 78 to 22 in the Senate on September 29, 2005.
Analysis of voting records has demonstrated that Justice Roberts’s pronouncements have generally been consistent with the policy preferences and judicial philosophies of political conservatives. However, among the many judgments and opinions that Robert has penned, two of them deserve special mention as they reveal the character of the man.
In 2018, Roberts wrote the opinion for a 5–4 conservative majority in Trump v. Hawaii upholding President Trump’s executive order restricting the immigration of foreign nationals from eight countries, six of which had populations that were predominantly Muslim. Trump’s order had been criticized for allegedly targeting members of a particular religion in violation of the establishment clause. In his opinion, Roberts characterized the Immigration and Nationality Act (the INA) as giving the President “broad discretion” over enforcing its provisions and concluded that the order was within the president’s power given the general authority granted by the INA, the absence of any explicit mention of a goal of blocking Muslim immigration, and the existence of alternative, neutral reasons for limiting travel from the listed countries. Many called this judgment a gymnastics display of an often obfuscating legal phraseology, rather than the firm constitutional dissection of an order, making Justice Roberts’s leanings to the conservative standard of the bench apparent but with his own writings prescribing the limits he found acceptable.
But the judgment that took many by surprise concerned the Affordable Care Act (the ACA) or ‘Obamacare’. Roberts’s decision was nuanced and complicated and cannot be labelled as ‘liberal’ or ‘conservative’. Roberts embraced the argument of the ACA’s critics that the mandate exceeded Congress’s authority under the commerce clause, a view then outside the mainstream of commerce clause jurisprudence, but he ultimately upheld the directive on the grounds that it was properly understood not as a penalty (which Congress could not impose except under the commerce clause) but as a tax, which would fall squarely within Congress’s powers under the taxing and spending clause of Article I, Section 8. Roberts’s decision was viewed by conservatives as having rescued onerous and unconstitutional liberal legislation and by liberals as having imposed novel conservative-inspired constraints on the national government. More neutral observers, however, praised the decision for what they saw as its split-the-difference judiciousness.
On June 3, 2017 Roberts made a rare and strikingly unconventional commencement address at his son’s middle school by declining to wish the graduates good luck. He instead expressed hope that they would endure unfairness, betrayal, loneliness, bad luck, loss, being ignored, and pain so that they would learn the value of justice, loyalty, friends, the role of chance, sportsmanship, listening to others, and compassion. Perhaps no wiser words could be coined to address the tormenting dilemma the young of our country face today.
Roberts’s emerging and continuing legacy is cultivating a reputation as an institutionalist who would strive to protect the Supreme Court from interference by the executive or legislative branches and promoting the legitimacy of the Court as a neutral arbiter above ideology and partisan politics. In November 2018, after Trump repeatedly asserted that federal judges who had been appointed by Democratic presidents were biased against him on political grounds, Roberts issued a very rare statement to the press. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts declared. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
I wish this rather extraordinary judge a very happy birthday.
scribo ad LX 