John Roberts and an "Institutionalist" Court

Sandy Levinson

I will celebrate Martin Luther King Day by taking the day off from Bush-bashing (not that he doesn't deserve it, of course). Instead, I will devote this posting to a remarkable interview, published under the title "Roberts's Rules," in the current Atlantic Monthly. Although written by Jeff Rosen, a friend whom I much admire, the article is best described as a relatively unfiltered channelling of Roberts's views. This may simply be a way of saying that I see no good reason to be so admiring of Roberts as Jeff seemingly is. Perhaps this is because I've never met the man and thus have not been subjected to what most people who have proclaim is a very charming personality. I find Roberts's views in many ways perplexing, for reasons I will spell out.

It is clear that Roberts, like Rosen, is a great admirer of John Marshall. What he most admires is Marshall's ability to suppress the expression of independent thinking, also known as concurrences or dissents. "If the Court in Marshall's era had issued decisions in important cases the way this Court has over the past thirty years [i.e., where there have been lots of concurrences and dissents], we would not have a Supreme Court today of the sort that we have. This suggests that what the Court's been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up. I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn't it's going to lose its credibilty and legitimacy as an institution."

As a sometime political scientist, I'd be curious to know on what Roberts is basing his theory of "credibility and legitimacy." Most studies seem to suggest that the public responds fairly directly to those very few Supreme Court decisions they know anything about on the basis of whether they agree with the result. The systematic unanimity of the Supreme Court following Brown seems to have had no affect, for example, on segregationist willingness to accept even the smidgen of desegregation (one cannot possibly call it "integration") in, say, Little Rock. But it's hard to escape the common-sense view that, overall, unanimous decisions are probably better than split ones from the perspective of the Court's appearing a "court of law" instead of "a court of men and women with quite different views on what the Constitution means.

Rosen writes, "In particular, Roberts declared, he would make it his priorty, as Marshall did, to discourage his colleagues from issuing separate opinions." Thus, said Roberts, "I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they're writing separately, about the effect on the Court as institution." Again, as a political scientist and student of Robert McCloskey, I am quite happy with the veiw that judges, as a descriptive matter, are concerned with protecting the institutional interest of the Court. But note well, this protection may come at the price of what can be described as the intellectual integrity of the given justices who are being discouraged to suppress their "Herculean view" (to use Dworkin's terminology) as to what the law "really" requires in favor of submitting to (the Chief Justice's?) view of what best serves the Court's institutional interest.

It's an interesting exercise to try to figure out how this institutionalist view accords with his "umpire view" that he so notably tried to sell to the Senate Judiciary Committee at his confirmation hearings. Umpires, presumably, are not supposed to be instrumentalists, concerned with the consequences of a given call for a given game, a pennant race, or even the overall "good of preserving the good repute of umpires," unless that is simply another way of saying that good repute means undeviating fidelity to honesty. But Roberts here is defending a quite instrumentalist conception of the judge that requires at least some deviation from unflinching devotion to "calling them as you see them, which also happens to be as you think they are." It begins by suggesting that it is perfectly proper for a judge, who after all has taken an oath of office to defend the Constitution--and not "the institutional interests of the Supreme Court"--to sign opinions that he/she doesn't agree with. It is obviously the case that many judges, including those we regard as "great," have done so; it is indeed required by the very idea of a court that has repudiated seriatim opinions, one of Marshall's most important achievements. But isn't there also something a bit dicey about the notion, at least for those who take "legal fidelity" with utmost seriousness? At the very least, wouldn't it have been desirable for Roberts, at the hearings, to complement his "umpire view" with his institutionalist view and address some possible tensions between them?

Rosen invites us to envision Roberts trying to encourage Scalia and Thomas to shut up, especially where they agree with the majority outcome but not its rationale. I would love to sit in on that ocnversation. But he would presumably be even more inclined to hope that they would shut up when they are in dissent (except, perhaps, when he would be joining them). But such submission would have deprived us, among other things, both of Scalia's genuinely eloquent dissent in Hamdi (which I agreed with) and Thomas's equally important dissent in the same case (that appalled me, but, as I have discovered when teaching it, sets out the underlying issues with tremendous clarity that has convinced a lot of students). Would the country really have been better off with such suppressions, in favor of the mush written by the O'Connor plurality in that case?

"Roberts praised," writes Rosen, "justices who were willing to put the good of the Court over their own ideological agendas." But is this the way that the justices themselves describe themselves? I.e., how many of them, beginning with Roberts, have been willing to testify under oath, or, for that matter, elsewhere, that they have "ideological agendas"? Political scientists may believe that they indeed do, but I dare say that most justices, quite probably sincerely, describe themselves as being motivated by a duty to be faithful to the Constitution. Antonin Scalia sees a different Constitution than does John Paul Stevens, but that simply says that the Constitution is capable of being interpreted in different ways, not that Scalia (or Stevens) has an "ideological agenda" that the other does not. Then Roberts is quoted as saying, "A justice is not like a law professor, who might say, 'This is my theory . . . and this is what I'm going to be faithful to and consistent with,' and in twenty years will look back and say, 'I had a consistent theory of the First Amendment as applied to a particular area.'" Instead, "it would be good to have a commitment on the part of the Court to acting as a Court rather than being more concerned about the consistency and coherency of an individual judicial record."

So on what basis would Roberts have judtges in conference cast theiry votes? It's apparently not in terms of a "theory." One gathers that Roberts is a fan of Emerson and is rather cavalier about consistency. Judges are not law professors, after all. I'm happy to accept the notion that justices are indeed not law professors, but, then, what exactly does constitute the difference between a Justice and a legislator if not some believed commitment to the Constitution? Do we have any real idea what Roberts believes the Constitution to be beyond preserving the institutional power of the Court?

He suggested at his confirmation that he's a fan of precedent and narrow decisionmaking. But how does this fit with the early predictions by such experienced court-watchers as Linda Greenhouse and Joan Biskupic following the oral argument in the Seattle and Louisville cases, that Roberts (and Alito, let's not forget him) are raring to overturn decades of precedent and adopt, for the first time, a hard-core "colorblind" notion of the Fourteenth Amendment, at least where race is concerned?

Incidentally, would a "restrained" and "minimalist" Court have taken those cases in the first place? There was, after all, no conflict in the circuits, and it apparnetly took no fewer than seven conference sessions before the Court granted cert. Does anyone seriously believe that it was the "moderate four" who were raring to hear those cases? Was Roberts such a weak new CJ that he couldn't persuade even one of his conservative colleagues to wait? Or did he in fact support the grant, and will he in fact write a 5-4 opinion that will turn American public education upside down and lead to far more racial segregation even than now exists? (And, of course, will he vote, also in -4 decisions, to get rid of racial preferences not only at elite law schools, but also, and far more seriously, at the various US military academies?)

Roberts also indicated that he is unhappy with charts, as in the New York Times, Atlantic, and Harvard Law Review, among others, indicating judicial pairings and blocs. 'It is such an egotistical analysis of the Court.... I think it's bad, long-term, if people identify the rule of law with how individual justices vote." Well, there's a good institutionalist response to this problem: Follow the practice of the European Court of Justice and simply forbid any concurrences and dissents at all. The Irish Supreme Court follows a similar practice, as does, I believe, the Greek Constitutionial Court. Or, somewhat more moderately, simply issue all majority opinions as per curia, in the name of the institutional Court, so that we no longer identify a particular opinion as written by Chief Justice Roberts or anybody else. We could even have "anonymous" concurrences and dissents. So, if my call for a new constitutional convention is ever heeded and if Chief Justice Roberts is called upon to offer suggestions, what's wrong with these? As a matter of fact, I think there's a lot wrong, but I'd be interested in knowing whether Roberts agrees.

Roberts has apparently been reading some business motivation books, for he talks about the importance of "team dynamic." "You do have to [help people] appreciate, from their own point of view, having the Court acquire more legitimacy, credibility; [show them] that they will benefit, from the shared commitment to unanimity, in a way that they wouldn't otherwise. You do need some fluidity in the middle, if you are going] to develop a commitment to a different way of deciding things." Since many readers, including myself, might find this a perplexing notion, Rosen provides his own gloss: "In other words, on a divided Court where neither camp can be confident that it will win in the most controversial cases, both sides have an incentive to work toward unanimity, to achieve a kind of bilateral disarmament."

As it happens, David Law and I have published an article, in the Richmond Law Review, explaining "Why Nuclear Disarmament May be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments ." The analysis certainly holds as well for "disarming" the two camps on the current SupremeCourt. The problem is twofold: Who is empowered to "negotiate" the treaty; and then how is compliance to be enforced, given the temptations to defect? But for starters, we should try to figure out what Roberts (or Rosen) can possibly mean by "work[ing] toward unanimity." Presumably, he's not suggesting--or is he?--that justices should agree not to vote to grant cert unless it appears (when, and how, since HW Perry suggests that almost no serious discussion goes on with regard to most cert grants?) that the outcome will be unanimous. So let's assume that cert has been granted and oral argument heard. At the time of the conference, it's obvious who wins and who loses. What incentive do the winners have to make substantial concessions to the losers, especially if the winners do indeed believe that "the Constitution" compels their result (whether it's a "color-blind Constitution" or giving genuine due process to detainees)? And when should the losers be "good sports" and sign opinions that they in fact believe to deviate from the proper understanding of the Constitution and reach results that are not supported by any sound constitutional analysis?

Apparently, Roberts is going to use his assignment power, as Chief Justice, to prefer those who are "committed to broad consensus" rather than law-professor type ideologues. So does this mean that Scalia and Thomas will get no important opinions to write in the coming term? Will Roberts, like Marshall, start hogging the show as a means of disciplining his colleagues?

George Bush has "only" 736 days remaining in office. John Roberts may have upwards of 11,000 days remaining, should he serve for 30 more years. As readers of my book know, I believe that life tenure is every bit as indefensible as is the locked-in fixed-term presidency. In the nature of the case, no Chief Justice can possibly threaten us the way an incompetent President can, but it's still no small matter that he might remain on the Court in 2037. In any event, do we really have any firm basis for believing what kind of Chief Justice John Roberts will turn out to be, and do we like what we've seen so far (including the Rosen interview)?
Posted 3:19 PM by Sandy Levinson [link]