The statements at issue:
“His job is not to finesse the place of the Supreme Court in the political world, in which he and most justices are rank amateurs, but to get the Constitution right first and then defend the institution second.”
– John Yoo, law professor at the University of California-Berkeley, in an email message published July 3 by The New York Times. He was commenting on leaks to the news media that Chief Justice John G. Roberts, Jr., had switched positions from striking down the new federal health care law to upholding it.
“There is speculation in conservative circles that Roberts had intended to strike down Obamacare but flipped his position at the last minute. We don’t know if he was suddenly convinced by his liberal colleagues or simply had a failure of nerve.”
– Marc A. Thiessen, fellow of the American Enterprise Institute in Washington, in an op-ed column July 7 in The Washington Post, commenting on the same news reports.
We checked the Constitution, and…
The Chief Justice of the United States–that is the correct title–is one of the few top federal officials whose job was created explicitly in the Constitution. By tradition, the Chief is also the head of the judicial branch and is its dominant administrator. And, if the federal courts’ reputation is suffering, or those courts are under political siege, it is to the Chief that the other justices–and perhaps the nation’s people–look for restoration of its stature, and maybe its power, too.
After seven terms as Chief Justice, John G. Roberts, Jr., probably has not had his leadership tested as much as now. When he returns from a two-week teaching assignment in Malta, and retreats to his summer home in Maine, he almost certainly will start thinking about that challenge, and whether he needs to do something about it.
He can have no doubt that many conservative politicians, pundits, and academics are thoroughly displeased with his votes in the health care case. (When those tempers cool, though, they will discover on closely reading his opinion that Chief Justice Roberts has not abandoned any of his conservative philosophy, and, indeed, has given a strong push to the limited government sentiment that now runs so deeply in conservative circles.)
But the Chief Justice’s problem, if he has one right now, is not solely with conservative critics outside the Court. It now appears that the internal deliberations of the Court were the subject of very substantial leaks from inside, and those leaks were framed in a way that challenged his leadership in fashioning a majority to resolve the Affordable Care Act controversy. Mr. Thiessen’s comment in The Post that the Chief Justice may have suffered “a failure of nerve” is an echo of what the leaks had indicated was an internal complaint, too.
It is almost certainly not in Roberts’ power to stop such leaks altogether. But, as the Chief, he does have the prestige and the rank–and perhaps the obligation–to lead the Court back toward renewed collegiality and common purpose. He is known to want to keep the Court above politics, as much as possible, and that may very well account for the way he voted on health care. He almost surely is fully aware of the criticism that the Roberts Court is a partisan bastion, but now, the sniping from inside might just reinforce such an image–unless the Chief moves to ease the tension.
But dealing with that is an internal task; Roberts also faces a task that involves the world outside the Court, and not just to woo back America’s conservatives.
Although Professor Yoo sought to lecture the Chief Justice on his priorities, that critique suffered from two flaws. First, there was no “right” way to decide the health care case; that the Court was deeply divided on almost all parts of the ruling showed that mature minds can differ on basic questions of constitutionality. The Court is not “wrong” just because it displeases some of the public.
About Constitution Check
- In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.
Second, because the Chief Justice is the public face of the court, he must have a highly developed sensitivity to when it is getting into political trouble. A Chief Justice must be constantly aware of that in the digital age, when a negative response to the court can go viral instantly.
As a student of the court’s history, Roberts surely is aware of what may have been the finest moment in the career of one of his predecessors. And, despite Professor Yoo, this previous Chief Justice did not consider his external obligations to be secondary.
That Chief, of course, was Charles Evans Hughes. In 1937, with the Court in the midst of the constitutional crisis over its independence of the White House, it was Hughes’ public and private maneuvering that helped seal the doom of President Franklin Roosevelt’s Court-packing plan. Had that plan succeeded, it might well have destroyed the Court.
In a column in The Nation magazine in May 1937, when the Roosevelt plan was going down to defeat, columnist Robert S. Allen wrote: “Few realize how important a part Mr. Hughes has played in the fight against the court bill. He has conducted his operations with consummate deftness and finesse–and tremendous effectiveness.”
Hughes did it, though, with the support of his colleagues. The leaks from within the Roberts Court do raise some doubt about whether this Chief can count on solidarity from within.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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