Chief Justice John G. Roberts Jr. last week showed he has no intention of inserting himself into the current political controversy over filling the seat on the Supreme Court left vacant by the death of Justice Antonin Scalia.
Roberts, 61 and now more than 10 years into his tenure, spoke to judges and lawyers from the St. Louis-based U.S. Court of Appeals for the 8th Circuit, which stretches from Arkansas to North Dakota. In what were his most extended public remarks since Scalia's death in February, Roberts was determined not to take sides in the fight between Republicans and Democrats over whether to make the court whole again by confirming President Obama's nominee, Judge Merrick Garland.
Roberts batted away a question about how the ideologically divided eight-member Supreme Court is functioning and refused to talk even about his own earlier observations that the court’s reputation is suffering collateral damage from Washington’s partisan political gridlock.
But Roberts was far more revealing when 8th Circuit Chief Judge William Jay Riley asked what the chief justice had learned from the 16 men who proceeded him.
Roberts did not need to remind the audience that his official title is chief justice of the United States.
“You realize, first and foremost, your responsibility to protect the separation of powers, which is of vital importance, even in little things,” Roberts said. “I know that I represent you judges, here, in Washington.”
Roberts has made clear that he is not a fan of the president’s State of the Union address. But he has gone every year he has been in his office, and he says his place of prominence in the front row is only proper.
"If the president is going to be here and the speaker of the House is going to be here, I'm going to be here, or I'm not going," he said. "Because I represent the judicial branch and that has to be shown [respect], even as a matter of protocol."
Roberts’s actions on the bench back that up. The only time he teamed up with the court’s liberal justices to save a campaign finance restriction was upholding Florida’s ban on judges asking directly for campaign contributions.
“Judges are not politicians, even when they come to the bench by way of the ballot,” Roberts wrote.
Last month, he disagreed with his colleagues who held that a statute passed by Congress to help terrorism victims win their lawsuit against Iran’s national bank did not intrude on the judiciary’s powers.
Roberts wrote a lofty dissent that detailed and praised the framers’ decisions to safeguard the judiciary in the Constitution.
“The authority of the political branches is sufficient; they have no need to seize ours,” Roberts wrote.
That separation, Roberts said, is also the lesson to be learned from former chief justices John Marshall — “the greatest hero of our profession” — and Roger B. Taney — “the greatest failure.”
Marshall's 1803 opinion in Marbury v. Madison established that it is the judiciary's exclusive province to "say what the law is." But the genius of Marshall's opinion, Roberts said, was its finding that the court lacked the power to grant William Marbury's commission as a justice of the peace.
The decision “was the epitome of restraint,” Roberts said. Marshall said “this is up to Congress to resolve.” He diffused the conflict “by staying out of it.”
Roberts said Taney did the opposite in his landmark 1857 ruling in Dred Scott v. Sandford, which said that slaves and their descendents could not be American citizens and thus could not sue in federal courts. Taney's view of the slavery question that was tearing the country apart was "the president is not doing anything about this, Congress cannot solve this, it's up to me."
“He says, ‘Congress, you do not have the power to enact the Missouri Compromise because African Americans aren’t people under the Constitution,” Roberts continued. “It’s not just the shamefulness of the legal opinion, it’s the fact that it was an exercise of judicial activism. . . . He inserted the judiciary into most divisive political controversy in our history.”
Roberts paused. “So you learn that.”
Roberts’s remarks last week were a reminder of his modest but engaging performance more than a decade ago at his confirmation hearings. But some of his most important decisions as chief justice have shown that “judicial restraint” is in the eye of the beholder.
Many Republicans simply will not forgive him for his majority decision in 2012 upholding the constitutionality of the Affordable Care Act. He believed it was the court’s responsibility to look for a way to find the act constitutional.
But not a single fellow justice was willing to join the entirety of his compromise opinion, which eventually won five votes.
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) seemed to be referring to the Obamacare decision when he said that “many of my constituents believe, with all due respect, that the chief justice is part” of the problem of the court being seen as political. “They believe that a number of his votes have reflected political considerations, not legal ones. And certainly there are academics who agree.”
Some of those academics last week were even debating whether Roberts’s role in saving the Affordable Care Act led to the anger in the Republican Party that gave rise to Donald Trump’s success.
On the left, the charge is that Roberts has abandoned his sense of restraint when the subject is a conservative cause in which he believes. They point to his vote in striking a key part of the Voting Rights Act that had only years before been reauthorized by overwhelming majorities of Congress.
Roberts had long been a critic of a provision that required some states with a history of discrimination to have any changes in election law approved in advance by the Justice Department or federal judges.
Where was the deference to the political branches, Justice Ruth Bader Ginsburg asked in her dissent to Shelby County v. Holder.
“Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the court’s opinion today,” she wrote.
Neither of those cases is finished business.
Before the justices finish their current term next month, they will issue their fourth decision on some aspect of Obamacare. And lawsuits filed on the restrictive voting laws that some states passed in the wake of the Shelby County ruling are filling the federal courts and finding their way to the Supreme Court.
More opportunities for the court to, as Roberts said last week, “do our job and mind the business that is ours under the Constitution.”
