Numerous commentators have by now remarked on John Roberts’s wry sense of humor, as revealed in memoranda released from his service in the Reagan administration. My favorite jibe of his so far is one I haven’t seen mentioned elsewhere. In 1994 in a now-defunct law journal called the Public Interest Law Review (edited by The Weekly Standard’s Terry Eastland), Roberts published an article reviewing the 1992-93 term of the Supreme Court. (My thanks to Gerry Bradley for tracking down the article in his library, as mine didn’t have the journal.)
In the course of the article Roberts, who had recently left the Solicitor General’s office and returned to private practice following the election of President Clinton, wrote critically of the decline that had occurred over the preceding several years in the number of cases heard and decided by the Court. Then came this deadpan put-down of the justices who had engineered this change: “Speculation as to the reasons for the significant drop in decided cases abounds. Most observers are properly unwilling to credit one obvious explanation, that this is what you get when you give people complete job and salary security and tell them to decide for themselves how much work to do.”
That phrase “properly unwilling” achieves the intended effect with a sidelong glance–just enough obliqueness to give Roberts an “out” if someone accused him of having been harshly critical of the Court. Those who are “properly unwilling to credit” this explanation would include, obviously, the elite lawyers of the Supreme Court bar who appear before the justices frequently–such as Roberts himself at the time. But it is hard not to believe that Roberts himself liked the “obvious explanation.”
But the jibe raises an interesting question. Most students of the Court recognize the drop in the number of fully argued cases on the Court’s docket–from about 150 a year to about 85–as one of the chief aims of Chief Justice Rehnquist, who appears to have believed that the Court’s workload was too heavy when he was elevated from associate to chief nineteen years ago. Will Roberts, who once clerked for Rehnquist before he became chief, struggle to reverse this trend and re-expand the number of cases on the Court’s docket? At one point in his article, he remarks on the disapproval Justice Byron White often expressed of the trend of the shrinking docket–and on how that voice would now be stilled with White’s 1993 retirement. Perhaps Roberts will see himself picking up the fallen banner of Justice White, making the case within the Court for a fuller docket and especially for settling “conflicts among the courts of appeals,” a need particularly noted by White in his day.
This is all admittedly speculative–another reason to ask Roberts lots of questions!–but if I read these tea leaves correctly, we could see a battle in future of Roberts vs. Rehnquist, the protégé vs. the mentor. It might be interesting to watch.