Law professor Scott Gerber of Ohio Northern University gives Chief Justice Roberts bad advice in today’s Wall Street Journal. Scott’s article (we are on friendly terms so I’ll use his given name) is very short, fewer than 500 words, so perhaps some subtleties were left out on the way to publication. Still, I don’t think the argument is merely underdeveloped. I think it’s plainly wrongheaded, even if Scott had room to develop it more.
Scott notes that one of Roberts’ stated goals has been to produce more consensus in the Supreme Court’s decision-making. “Significantly,” Scott writes, “he publicly disclaimed [in his confirmation hearings] any interest in moving the law in a favored direction,” instead speaking of the judge’s role as akin to that of an “umpire” who officiates over a contest rather than taking part in it. It seems that for Scott, the goal of consensus, the lack of interest in “moving the law,” and the self-image of an “umpire” are all of a piece with each other.
I don’t know why they would be, and I don’t see any evidence that for Roberts they are. Take them one at a time:
1. The goal of consensus can be pursued with a view to forming the law to a particular shape that the chief justice finds desirable–whether “umpire-neutral” or not, politically driven or not. A chief’s efforts to produce consensus could in fact be at odds with umpire-style neutrality, if he finds that the path of least resistance is to cater to what seem the dominant political motivations of his colleagues.
2. Eschewing the goal of “moving the law in a favored direction” could therefore be consistent or inconsistent with the goal of consensus, depending on the circumstances. And there’s no reason that the “favored direction” could not be towards the restoration of an umpire-like neutrality in adjudication, if a chief justice regards that direction favorably and is concerned about the Court’s having fallen away from that posture as an ideal.
3. And so we see that the goal of umpire neutrality can be productive of consensus, or it can be productive of division–again, depending on the circumstances. And it can mean shaking things up–”moving the law,” in Scott’s words–or standing pat on a status quo. This too will depend on the circumstances and the chief’s perception of the circumstances.
Why Scott wants to mix up these three things as though they were interchangeable, or inextricably linked, I don’t know. But it seems clear to me that John Roberts believes the following: He thinks judges should be neutral “umpires” who bring no political agenda to the decision of cases. He is not interested in “moving the law in a favored direction” other than in the direction of law as such, sans politics. And, as chief justices often do, he feels more responsible than his colleagues for the reputation and the institutional position of the Court, and therefore is more acutely conscious of the criticism that comes their way when the justices are frequently and sharply divided–as with lots of 5-4 decisions, which spread the perception that the work of the Court is more political than legal.
I think Roberts holds these goals in the priority order described above, too. That is, he is first interested in deciding cases with as much impartial devotion to the law as he can muster, as an individual participant in decision-making himself. Secondly, if he can move his colleagues with him in that direction, so much the better. But if he can move only two or three of them, in dissent, that will have to do: dissents often find themselves vindicated in the future (as Roberts surely hopes will happen with Boumediene, for instance). If he can move just four to go with him, that is better still: winning is better than losing. And winning is better than consensus, if that’s the choice. So third and last would be the goal of reducing the frequency and depth of division on the Court. Nice results if you can get them, but not top priority compared to doing right by the law.
None of this takes any mind-reading where Roberts is concerned. It’s just what any ordinarily sensible chief judge of an appellate court, who has said what Roberts has said, would naturally want.
But Scott Gerber wants Roberts to strive to be “great in the eyes of history,” which he thinks means dropping this “umpire” masquerade and “step[ping] up to the plate” as a “player in the game that is constitutional law.” This, Scott says, is what chief justices John Marshall, Charles Evans Hughes, and Earl Warren all did–suggesting, who would not like to join the pantheon of those great ones?
I’ve already gone on longer than Scott’s little article, but I must say it: God save us from judges who dream of being “great in the eyes of history.” They almost invariably do more harm than good to the Constitution. And about John Marshall, Scott is simply mistaken. Marshall was not a striver after “greatness,” and he brought no political agenda to his judging. (It is the conventional wisdom that he did, but the endless repetition of this is not evidence. The c.w. rests on widespread misreadings of Marshall’s opinions, as I have shown elsewhere.) Marshall is in fact the best model of the kind of chief justice John Roberts has said he wants to be: devoted to the Court’s proper position and independence as an institution, while being both personally modest and modest about the size and reach of the judiciary’s role in American life and politics.
It was in a blithe unconcern for the prospect of historical greatness that the Great Chief Justice attained his true claim to that immortal title. John Roberts can safely follow that lead.