Chief Justice John Roberts: Smooth Operator
May 11, 2016 (Mimesis Law) — As I sat outside the Embassy Suites late one night last week in Rogers, Arkansas, I was smoking my pipe. One of our great Magistrate Judges, F.A. Gossett from Nebraska, was puffing on a cigar. A female career law clerk from Arkansas sat with us puffing on her cigarette. We were all telling lies and laughing–undoubtedly fueled by more than a little vino.
The subject of Arkansas came up. We, and hundreds of other lawyers and judges, had gathered in Northwest Arkansas for the Eighth Circuit Judicial Conference. I began poking fun at Arkansas, referring to the 1972 movie Deliverance while trying to emulate the “Banjo Duel.”
Without missing a beat, Judge Gossett opined that Deliverance “was really a love story.” The rest of us nearly fell off our seats laughing. (Maybe you had to be there.)
But I digress from the point of this post. That’s okay, though. Digressions are the province of Senior U.S. District Judges. Besides, as a rhetorical matter, it is sometimes useful to use levity to draw the reader into a serious and important discussion, which I hope to do next.
The next day after my Deliverance moment, I had the rare opportunity to listen to Chief Justice John Roberts answer questions from Eighth Circuit Chief Judge Bill Riley. Bill is a dear friend, a judicial clerk with me more than 40 years ago on the Eighth Circuit, a law school mate from the class of ’72 at the University of Nebraska College of Law, and one of Nebraska’s finest trial lawyers before going to the Circuit. Bill sits on the Executive Committee of the Judicial Conference of the United States by appointment of Chief Justice Roberts—a very big deal.
The two judges were seated in comfy chairs on a raised podium. A video feed was projected on a huge screen. Everyone, including a lot of media from across the country, was focused on Roberts. Chief Justice Roberts had not been given the questions Bill would ask in advance. The question and answer period went on for about an hour. Roberts answered without notes of any kind. Five hundred or more people listened in truly rapt attention.
Whatever you think of his jurisprudence in particular cases, I have no doubt that Chief Justice Roberts will be counted as one of the greatest Chief Justices in our history if you measure such things by an abiding love for, and an encyclopedic knowledge of, the Court as an institution. I am not alone in my view.
Roger Parloff, Senior Editor for Legal Affairs at Fortune Magazine and a Yale educated lawyer, in a fascinating piece recounting the views of many others with an intimate knowledge of Roberts and the Court, has written:
Just 50 when he assumed that post, Roberts became the youngest Chief Justice since John Marshall was appointed to the job by President John Adams in 1801. With good health, Roberts could surpass Marshall’s record as the longest-serving Chief Justice (34 years) in March 2040. Along the way he’ll have a fair shot at surpassing in stature every Chief Justice except Marshall (who wrote Marbury v. Madison, the bedrock 1803 opinion establishing that the Supreme Court is empowered to strike down acts of Congress that in its view conflict with the Constitution).
In truth, though, I came to the foregoing conclusion not because others think highly of the Chief Justice or because Roberts was one of the greatest Supreme Court advocates of our time. I did not come to this conclusion because Roberts answered each and every one of Bill’s questions in perfectly formed sentences together with an exquisitely modulated voice and droll sense of humor—he simply took over the large room with his persona.
Let me explain why I think it likely that Roberts will ascend to the pantheon of great Chief Justices. Bill asked the Chief Justice, essentially, what Roberts had learned about being Chief Justice. After wryly observing that he was glad that no one asked him at his confirmation hearing to name all the 16 Chief Justices who came before him, Roberts then began a fascinating discussion about how Chief Justices must learn to protect the Court as an institution. It was obvious that Roberts had studied hard on this question.
He compared former Chief Justices John Marshall — “the greatest hero of our profession” — and Roger B. Taney — “the greatest failure.” Robert Barnes for the Washington Post provides a better description of the details than I can.
Marshall’s 1803 opinion in Marbury v. Madison established that it is the judiciary’s exclusive province to “say what the law is.” But the genius of Marshall’s opinion, Roberts said, was its finding that the court lacked the power to grant William Marbury’s commission as a justice of the peace.
The decision “was the epitome of restraint,” Roberts said. Marshall said “this is up to Congress to resolve.” He diffused the conflict “by staying out of it.”
Roberts said Taney did the opposite in his landmark 1857 ruling in Dred Scott v. Sandford, which said that slaves and their descendants could not be American citizens and thus could not sue in federal courts. Taney’s view of the slavery question that was tearing the country apart was “the president is not doing anything about this, Congress cannot solve this, it’s up to me.”
“He says, ‘Congress, you do not have the power to enact the Missouri Compromise because African Americans aren’t people under the Constitution,” Roberts continued. “It’s not just the shamefulness of the legal opinion, it’s the fact that it was an exercise of judicial activism. . . . He inserted the judiciary into [the] most divisive political controversy in our history.”
If you think that Roberts was just running off at the mouth about safely steering the Court through raging tempests and protecting the Court as a co-equal branch of our government, then I demand that you read his very recent dissent in Bank Markazi v. Peterson, No. 14-770, 578 U. S. __ (April 20, 2016) where Roberts sided with the Iranians, despite the fact that only Justice Sotomayor agreed with him.
His dissent powerfully begins this way:
Imagine your neighbor sues you, claiming that your fence is on his property. His evidence is a letter from the previous owner of your home, accepting your neighbor’s version of the facts. Your defense is an official county map, which under state law establishes the boundaries of your land. The map shows the fence on your side of the property line. You also argue that your neighbor’s claim is six months outside the statute of limitations.
Now imagine that while the lawsuit is pending, your neighbor persuades the legislature to enact a new statute. The new statute provides that for your case, and your case alone, a letter from one neighbor to another is conclusive of property boundaries, and the statute of limitations is one year longer. Your neighbor wins. Who would you say decided your case: the legislature, which targeted your specific case and eliminated your specific defenses so as to ensure your neighbor’s victory, or the court, which presided over the fait accompli?
That question lies at the root of the case the Court confronts today. Article III of the Constitution commits the power to decide cases to the Judiciary alone. See Stern v. Marshall, 564 U. S. 462, 484 (2011). Yet, in this case, Congress arrogated that power to itself. Since 2008, respondents have sought $1.75 billion in assets owned by Bank Markazi, Iran’s central bank, in order to satisfy judgments against Iran for acts of terrorism. The Bank has vigorously opposed those efforts, asserting numerous legal defenses. So, in 2012, four years into the litigation, respondents persuaded Congress to enact a statute, 22 U. S. C. §8772, that for this case alone eliminates each of the defenses standing in respondents’ way. Then, having gotten Congress to resolve all outstanding issues in their favor, respondents returned to court . . . and won.
. . .
The central pillar of judicial independence was Article III itself, which vested “[t]he judicial Power of the United States” in “one supreme Court” and such “inferior Courts” as might be established. The judicial power was to be the Judiciary’s alone.
(Underline by Kopf.)
Roberts ends his dissent even more powerfully. He writes:
At issue here is a basic principle, not a technical rule. Section 8772 decides this case no less certainly than if Congress had directed entry of judgment for respondents. As a result, the potential of the decision today “to effect important change in the equilibrium of power” is “immediately evident.” Morrison v. Olson, 487 U. S. 654, 699 (1988) (Scalia, J., dissenting). Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the winners and losers in particular pending cases. Today’s decision will indeed become a “blueprint for extensive expansion of the legislative power” at the Judiciary’s expense, Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 277 (1991), feeding Congress’s tendency to “extend[ ] the sphere of its activity and draw[ ] all power into its impetuous vortex,” The Federalist No. 48, at 309 (J. Madison).
I respectfully dissent.
To sum up simply, Chief Justice John Roberts is a “smooth operator” in the best sense of those two words. I am ever so glad.
Richard G. Kopf
Senior United States District Judge (Nebraska)