Bench Memos

Law & the Courts

‘Judging Roberts’

In an outstanding (and extensive) essay in the forthcoming issue of the Weekly Standard, Adam J. White addresses—mostly sympathetically, sometimes critically—how Chief Justice Roberts might assess his own performance at his ten-year mark on the Supreme Court.

Here’s how White outlines his rich presentation of Roberts’s legal thinking:

[I]f one reviews not just [Roberts’s] judicial opinions on the Supreme Court and D.C. Circuit, but also his confirmation hearings, his scattered writings, and the speeches he has given, then a handful of common themes emerge. They are not hard-and-fast rules for deciding individual cases. They do not explain his entire body of work. And they certainly are not without tensions or contradictions. But they do seem to highlight at least some of the themes that Roberts has grappled with throughout his career and are stated best not as answers but as questions: What is the federal government’s role in America? What is the Supreme Court’s role in the federal government? And what is the chief justice’s role on the Supreme Court?

And, building on his discussion of the Chief’s opinion last term in King v. Burwell, here’s White’s closing:

For his thoughtful focus on the deeper institutional questions surrounding the Court, the chief justice deserves (and, from conservatives, receives) great credit. But his skills as a legal craftsman ultimately allow him to increase the range of options before the Court in any given case, which in turn increases, not decreases, the Court’s role in American politics—the very opposite of what he hopes to achieve through judicial self-restraint. Thus he leaves many wondering what, exactly, his judicial methodology will ultimately produce.

John Roberts wants to be remembered as a good judge, “nothing more or less than that.” We know what he said. But what did he mean?

Whether one agrees or disagrees with White’s particular assessments, anyone interested in gaining deeper insights into the Chief Justice’s thinking will benefit from White’s careful and intelligent exploration.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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