How Justice Roberts Lost His Court(Supremes)
Ms. Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
The New York Times
A self-described documentary filmmaker, trolling a gala dinner for a gotcha moment by engaging Supreme Court justices in conversation and surreptitiously recording their words, arguably scored with Justice Samuel Alito when he told her he shared their stated goal of returning “our country to a place of godliness.”
But with Chief Justice John Roberts, the undercover provocateur, Lauren Windsor, struck out. In response to her question about whether the court had an obligation to guide the country “toward a more moral path,” the chief justice shot back: “Would you want me to be in charge of putting the nation on a more moral path? That’s for the people we elect. That’s not for lawyers.” He went on: “And it’s not our job to do that. It’s our job to decide the cases as best we can.”
Good for Chief Justice Roberts. Still, his admirable response to what he surely assumed was a private query invites further thought. Deciding cases is indeed the court’s job. But deciding cases may not be enough these days, when the Supreme Court has plummeted in public esteem to near-historic lows (41 percent last September, according to Gallup) and every week seems to bring a new challenge to its image of probity and detachment.
It’s said with some frequency that Chief Justice Roberts, outflanked by five activist justices to his right, has “lost the court.” While that was painfully obvious in the Dobbs case two years ago, when the Alito-led majority ignored his call for restraint and barreled through to a total erasure of the constitutional right to abortion, it’s an imprecise assessment.
Approaching his 19th anniversary on the court, the chief justice surely takes satisfaction in having accomplished central elements of his own agenda. His name is on majority opinions that have curbed affirmative action, struck at the heart of the Voting Rights Act, and empowered religious conservatives, all with the support of his conservative colleagues and over-vigorous dissenting opinions by the liberal justices.
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What he has “lost,” rather, isn’t control of the court’s judicial output, but of something less tangible but no less important: its ability to assure the public that it is functioning as a court where all parties get a fair hearing and where individual justices aren’t beholden elsewhere, either financially or politically. In the current toxic atmosphere, that’s a heavy lift, dependent on skills other than those that made John Roberts, once among the star Supreme Court lawyers of his generation, a contender for the job President George W. Bush nominated him for in September 2005.
Persuading a majority of the court to rule for one’s client is simple compared with persuading a fellow Supreme Court justice to withdraw from a case in which the public has reason to suppose partiality.
I’ve been asked quite often why Chief Justice Roberts doesn’t just instruct Justices Alito and Clarence Thomas, or at least jawbone them, to recuse themselves from the cases on Donald Trump’s prosecution arising from the 2020 election and the 2021 attack on the Capitol. Calls for Justice Alito’s recusal followed reports in The New York Times recently that flags associated with 2020 election deniers and carried by supporters of President Trump on Jan. 6 were hung at his Virginia home and his New Jersey beach house. Justice Thomas has also faced calls to step aside from those cases, given his wife’s open affiliation with the forces of election denial that led to the Jan. 6 riot.
Of course, I have no idea what interaction Chief Justice Roberts might have had with his two colleagues on this fraught subject, but I would be surprised to learn that they had any. Last month, in declining a request by two Democratic senators, Richard Durbin, and Sheldon Whitehouse, for a meeting “as soon as possible” to discuss what they called the court’s “ethics crisis,” the chief justice referred to “the practice we have followed for 235 years pursuant to which individual justices decide recusal issues.”
As head of the judicial branch — the title is chief justice of the United States, not chief justice of the Supreme Court — a chief justice has many responsibilities, more than 80 of them specified by federal statutes that convey wide-ranging authority. But inside the “conference,” the court’s term for the nine justices as a collective, real authority depends not on statutes but on qualities of leadership. A member of the court, separately confirmed to a life-tenured position, owes nothing to any other member. The only meaningful constraint on the justices’ interpersonal behavior is horizontal, not vertical. Justices know they can accomplish little unless four others are willing to go along.
When it comes to a chief justice, respect owed to the office goes only so far. Real respect has to be earned. Chief Justice Warren Burger, who served from 1969 to 1986, never seemed to earn it from colleagues who viewed him as pompous and manipulative. Some apparently found him so exasperating that they leaked unflattering details about the court in general and Burger in particular to the reporters Bob Woodward and Scott Armstrong for their blockbuster best seller, “The Brethren.”
His successor, William Rehnquist, had chafed under Chief Justice Burger for 15 years as an associate justice before becoming chief justice in 1986. In important ways, he was Burger’s opposite, prized by his colleagues, including those to his left, as a straight shooter who could be counted on to say exactly what he thought. One of his strengths was that far from seeking to cultivate a public image, he didn’t seem to care what others thought of him. He once skipped the president’s State of the Union address because it conflicted with his painting class at the local recreation center. Far to the right of the court he joined in 1972, he was often a lone dissenter in his early years. As chief justice, although he never abandoned his principles, he was willing to bend if it meant he could speak for a unified court. Of course, as the court became more conservative with the arrival of new Republican-appointed justices, he didn’t often have to bend very far. The grief his colleagues expressed when he died in office at age 80 wasn’t pro forma. It was real.
I’ve thought about Chief Justice Rehnquist as criticism of the court has intensified in the last few months. He was a fierce defender of the court’s standing and prerogatives, using his year-end “State of the Judiciary” report to speak up for judicial independence and call out Congress for enacting legislation with an impact on the judiciary without consulting the judicial branch. (Chief Justice Roberts, to his credit, did rebuke President Trump in 2018 for attacking a judge who had ruled against his administration.) We’ll never know, obviously, but I think Chief Justice Rehnquist would have drawn on his deep well of capital inside the court and found a way to let Justices Alito and Thomas know that recusal from the Trump immunity case would be highly advisable even if not required. A raised eyebrow might have been sufficient.
John Roberts clerked for Justice Rehnquist when he was an associate justice in the court’s 1980 term. While the two are said to have been close, their hard wiring was certainly very different. The current chief justice maintains exquisite control of his public persona, to the extent that it is hard to think of a spontaneous John Roberts act. But some spontaneity is called for now. His response to the Democratic senators was stiff and formulaic. If there is a blueprint for addressing the issues now swirling around the court, it has eluded a chief justice who might not have acquired the institutional capital to call on in a time of need. roughout his career on meticulous preparation. During his years arguing before the court, he famously brought an index card to the lectern on which was written the traditional opening line, “Mr. Chief Justice and may it please the court,” in case his brain froze up on him in the first seconds. I think it is safe to say it never did.
But no amount of preparation could have prepared him for the challenge the court now faces. There is no script to follow when a justice’s spouse has worked to overthrow an election on behalf of a former president whose fate is in the court’s hands. For years, as a lawyer before the court, John Roberts’s audience consisted of nine justices looking down at him from the bench. His record was impressive: 25 wins and only 14 losses. Now his audience, orders of magnitude wider, is an increasingly concerned public looking for reassurance that it’s not the court that is lost.
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