The Tragedy of John Roberts
By Jeff Shesol
"Mr. Shesol, a historian, has written several books about American politics, including “Supreme Power,” the story of Franklin Roosevelt’s failed attempt to pack the Supreme Court.
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In June 2012, at the end of a contentious Supreme Court term that decided, among other things, the fate of the Affordable Care Act, Chief Justice John Roberts prepared to leave for Malta, to teach a course on the court. “Malta, as you know, is an impregnable island fortress,” he joked on the eve of his trip. “It seemed like a good idea.”
Eleven years later, Malta no doubt retains its allure. The term that just ended must have been a torment for the chief. The court’s popularity has plunged to record lows; its members bicker on and off the bench; calls for the court to be packed are commonplace. Such circumstances would pain any chief justice, this one more than most. From the start of his tenure in 2005, he has painted himself as an institutionalist whose paramount concern is the court’s integrity. He conducts himself accordingly: He is decorous, almost regal; he speaks of moderation and judicial minimalism. He keeps a sovereign’s distance from modern life. In 1867, in a classic book on the English constitution, Walter Bagehot wrote that in times of change, “the most imposing institutions of mankind” maintain influence by demonstrating an “inherent dignity.” It is ironic, perhaps bitterly so, that a collapse in public esteem has become a hallmark of the Roberts court. Rarely, in recent decades, has the institution seemed less worthy of reverence.
The chief justice is portrayed by some as a tragic figure, powerless to save his court from itself. But the tragedy of John Roberts is that he does have the power to restore some measure of the court’s reputation — he just hasn’t used it. He has attempted, here and there, to restrain the court’s crusaders — by siding with liberals in the Alabama voting rights case, for example, and soundly rejecting the “independent state legislature” theory — but mostly, he has suggested that their methods and conduct are above reproach. His idea of integrity, it turns out, is a brittle thing, and self-defeating. It has put the court’s reputation at greater risk; it has made the court more, not less, vulnerable to public scrutiny and to encroachment by Congress and the White House.
This term will likely be remembered as the year the Supreme Court, led by its chief justice, ended race-conscious admissions at the nation’s colleges and universities. But the larger story of this term has been one of ethical rot and official indifference. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas drew attention — not for the first time — for their close ties to wealthy benefactors who have business before the court. Reports by ProPublica and in The New York Times show justices accepting gifts and blandishments as monarchs might: free vacations at luxury resorts; undisclosed trips on private jets and yachts; and, in Justice Thomas’s case, largess in the form of private-school tuition for a family member, secret real estate deals and donations to pet projects of the justice and his wife, Virginia Thomas. This is hardly a complete list.
As their conduct has grown more unrestrained, so has the tenor of their public statements. Justice Alito’s peremptory, self-exculpatory op-ed in The Wall Street Journal in June, denying even a hint of an appearance of impropriety, was shocking — unless you happen to have caught his comments in the right-wing echo chamber. At conferences and galas, the justice unspools his grievances — against nonbelievers, same-sex marriage, the 21st century — sounding less like a jurist than “a conservative talk-radio host,” as Margaret Talbot wrote in The New Yorker.
This behavior has bled into the business of the court. Observers have seen a new contentiousness during oral arguments; Justice Alito’s after-hours persona is increasingly on display and of a piece with his opinions. Dobbs, last year’s decision on abortion rights, was typical of the genre, notable not only for its results but its biting, indignant and sometimes exultant tone. Even a unanimous ruling can be occasion for cheap shots: In Sackett v. E.P.A., handed down in May, the justice kicked the agency when it was down, suggesting that if it had its way, it would regulate “swimming pools and puddles.” In a similar vein, Justice Gorsuch used a routine court order as a pretext for an eight-page jeremiad, portraying pandemic-era restrictions as a systematic assault on American freedom, and seeing, in the closure of public spaces during the worst of the emergency, creeping signs of “autocracy.”
Whatever Chief Justice Roberts thinks of their behavior, it is plain that judicial independence on his court has come to mean judicial license: a freedom to do and say what a justice pleases. In May, at an American Law Institute gala, the chief sought to “assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct.” Yet he acknowledged no lapse, announced no new policy, made no promise to keep Congress or the public informed.
What he did do was note the judiciary’s “status as an independent branch of government.” This — the separation of powers — has always been his trump card. He cited it in April when he refused to testify before the Senate Judiciary Committee on the issue of ethics. He cited it in 2012, brushing aside calls for the court to adopt the code of conduct that binds other federal judges. At a time when the justices have lost the public’s trust, Chief Justice Roberts has reaffirmed that they will continue to serve as their own judges and jury, their own inspectors general and ombudsmen. They will ask themselves for leniency, and are sure to bestow it. Justice Alito brought this home in his op-ed: There is no appearance of impropriety, because he tells us there is not. Justice Alito has cleared Justice Alito.
But the appearance of impropriety cannot simply be waved away. It cannot be ruled inadmissible in the court of public opinion. To paraphrase Justice Potter Stewart, we know it when we see it — and indeed, we have seen a good deal of it. Perhaps, behind the scenes, the chief is working toward reform. Perhaps he has admonished his colleagues, urged restraint. If so, he has failed. To redeem the reputation of his court, he must do more to put his house in order. “This is something that the court itself needs to come to grips with,” Senator John Cornyn of Texas said as the term was ending. “I hope that John Roberts will do that.”
Republicans like Senator Cornyn want the chief justice to take the matter in hand before Congress does; the effort to impose an ethics code on the court has gained momentum. No such legislation is likely to make it through the House, but Chief Justice Roberts should take Senator Cornyn’s friendly advice. He should adopt a more assertive posture, and publicly. A chief justice, it is often said, is merely first among equals. But in that role, he can speak for — and to — his court with an authority no associate justice can match. It is well past time to commit himself and his colleagues to clearer, stricter, enforceable standards of conduct. The gravest danger the court faces today is not congressional oversight, but its own sense of impunity."
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