Bench Memos

The Chief Speaks–But What Does He Say?

I’m blogging from the Federalist Society’s National Lawyers Convention (where they evidently haven’t heard of apostrophes), and came a little while ago from hearing Chief Justice John Roberts give the seventh annual Barbara Olson Lecture.  Apparently a former mayor of New York who’s running for something gave a speech here this afternoon while I was on the road–you’ll see a bit of comment on it on The Corner.

Roberts gave a lecture on the judicial appointments of James Madison: the deservedly obscure Gabriel Duvall, and the justly famous Joseph Story.  Not quite what I’d call a deeply learned talk, but full of telling anecdotes and quotations, and with an ample portion of wit, drily delivered by Roberts in deadpan fashion with just the faintest twinkle of mischief in his eye.  It reminded me of listening to Roberts’ old mentor William Rehnquist, an “amateur” (in the best sense of that word) historian of the Court who wrote several books on it, and whose own talks on the subject seemed echoed by the present chief justice tonight–only Roberts has a better comic delivery.

The Chief’s talk was, as a friend said afterward, not what we’d have gotten from, say, Justice Scalia, who would have given one of his patented thunderations about the virtues of originalism and the intellectual poverty of all the alternatives–about which he is quite right, of course.  Leaving aside the Rehnquistian touches of history, Roberts gave a speech that in its underlying theme could well have been given by Sandra Day O’Connor, who, if she had said all the same things, would not have been applauded so well by Federalist Society types.  O’Connor, after all, is given to schoolmarmish fretting about judicial independence, a notion strongly endorsed by Roberts in his lecture tonight in accents any judge could have employed. 

In short, FedSoc folks like the man, and think they know him, and therefore think they “heard between the lines” some indications of the Chief’s views.  But he didn’t say a word about judicial philosophy, really, other than to utter the anodyne characterization of Joseph Story’s “steadfast belief that the Court was above and apart from the political fray.”  And he praised President Madison’s rejection of Jeffersonian “litmus tests” when choosing Supreme Court nominees.  Yes.  Well.

As I say, the audience liked, nay, loved, the chief justice tonight–but it could not really have been for what he revealed so much as for what they project on him, embracing him as one of their own.  I hope we all have him right.  And that he has it right.

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