1
Meghan Murdock
Constitutional Law – Professor Tolley
The Jurisprudence of Chief Justice John Roberts
At his confirmation hearings in 2005, John G. Roberts Jr. explained his future role as,
“‘judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and
a judge is critical. They make sure everybody plays by the rules,’” and promised, “‘I will remember
that it’s my job to call balls and strikes, and not to pitch or bat.’”1 Tribe and Matz conclude at the
end of their novel, Uncertain Justice, that “what counts [in judicial decision-making] is how the justices
perceive their vital role in our democratic society as they grapple with the uncertainties posed by
technological change, cultural transformation, and evolving societal transformations.”2 Chief Justice
Roberts’ view of his role as an “umpire” and his “deep beliefs about the architecture and design of
the constitutional system itself” leads him to prefer narrow rulings that tend to narrow the scope of
federal power.3
In this respect, the conclusions of Tribe and Matz are correct about what drives Roberts to
rule as he does; however, what Tribe and Matz don’t stress in their conclusion is that while the
decisions of the Roberts Court are shaped mainly by the “justices’ deep beliefs about the
architecture and design of the constitutional system itself, the way its parts fit together to make a
working whole”4, the key word is “mainly”. Chief Justice Roberts, like many of his colleagues past
and present, is appropriately influenced at times by his background before joining the Court and
considerations of the political landscape that the Court can’t quite ignore. Furthermore, while the
Chief began his tenure on the Court stating he would act as a restrained Justice, his record actually
Tribe, Laurence, and Joshua Matz. Uncertain Justice: The Roberts Court and the Constitution. New York: Henry Holt and
LLC, 2014. 283. Print.
2 Tribe and Matz. 319-320.
3 Ibid.
4 Ibid.
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shows an active Chief Justice, indicating a stark difference between what Roberts has publicly stated
as his deep beliefs about the system and the perception of his role within that system and what he
truly believes. Roberts uses a narrow ruling to either disguise his true view of the role of a Supreme
Court Justice or to disguise his policy views, slowing establishing conservative Supreme Court
precedent that stems from his days in the Reagan Administration.
After graduating from Harvard Law School in 1979, John Roberts began his formative
clerkship for Associate Justice William H. Rehnquist of the United States Supreme Court.5 The
Presidential election of Ronald Reagan “lifted Rehnquist to power, and more broadly, gave flight to
the conservative legal movement.”6 Speaking about his mentor years later, Roberts described
Rehnquist’s role in shifting the field of constitutional law “to the more solid grounds of legal
arguments – what are the texts of the statues involved, what precedents control,” compared to his
description of the “more fluid and wide-ranging” practice of constitutional law that existed when
Rehnquist joined the Court, indicating his disagreement with this prior liberal era.7 Following his
clerkship, Roberts worked for the Reagan Administration in the Office of the White House
Counsel.8 During Roberts’s confirmation hearing, documents from that time show him to be a
“loyal…foot soldier in the Reagan revolution…generally…supporting the more conservative
position, especially on matters of race and civil rights.”9 Roberts entered private practice as an
appellate advocate following his stint in the Reagan White House then worked for the Solicitor
General in the George H.W. Bush Administration before returning to private practice during the
Clinton years.10 In both of these roles, “a substantial portion of [Roberts’s] work consisted of
Toobin, Jeffrey. “No More Mr. Nice Guy: The Supreme Court’s Stealth Hard-liner.” The New Yorker. 25 May 2009.
Web.
6 Ibid.
7 Ibid.
8 Ibid.
9 Ibid.
10 Ibid.
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representing the interests of corporate defendants who were sued by individuals.”11 Several of
Roberts’s arguments in key opinions on matters of race and civil rights, executive power and
individual liberty, and the power of the bureaucracy originate from his background and carried over
to his rulings as Chief Justice of the United States Supreme Court.
For Roberts, Tribe and Matz have largely captured the essential determinants of Supreme
Court decision making. By looking closer at several of his landmark rulings it appears that what truly
drives Roberts to rule as he does is his private perception of his role as a Supreme Court Justice. His
record tells a very different story than his public commitment to serving as a judicial “umpire”, who
rules according to established law and defers to the expertise of the other political branches when
necessary. Tribe and Matz describe in 2007 that “Scalia publicly accused Roberts of ‘faux judicial
restraint,’” demonstrating his frustration with Roberts’s “preference for narrow rulings, many of
which limited and undermined disfavored precedents but didn’t expressly overrule them,”12 as Scalia
was expecting when Roberts joined the Court. However, many of the Chief’s narrow rulings have
altered the balance of governmental power more than Scalia might believe. Upon examination of
major opinions crafted by Roberts, it becomes clear that why Roberts rules as he does depends
equally on his perception of his role on the Court and his perception of what is right, built upon his
conservative background.
In Northwest Austin Municipal Utility District No. 1 v. Holder (“NAMUDNO”) in 2009, the heart
of the issue was Section 5 of The Voting Rights Act of 1965, otherwise known as the “preclearance”
rule.13 Under this statue, specific jurisdictions, primarily in the Southern United States, were
“required to obtain permission from the federal Department of Justice before putting election laws
Ibid.
Tribe and Matz. 165.
13
Tribe and Matz. 33-34.
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into effect.”14 The purpose? To ensure that civil rights legislation was properly followed and that the
right to vote was upheld regardless of race. Wildly successful, Tribe and Matz describe that “on
nearly every front – including registration rates, voter turnout, and minority representation – the
VRA achieved its goals.”15 The VRA was reconsidered and reauthorized on several occasions by
Congress following its enactment, but most significantly in 2006.16 The Court in 2009 was charged
with reviewing whether the preclearance rule, Section 5, of the VRA remained constitutional.
Writing for the majority, Roberts decided “on narrow grounds” and “put Congress on clear notice
that the VRA’s preclearance rule was in peril.”17 His ruling clarified that “‘the Act imposes current
burdens and must be justified by current needs,’”18 and went on to describe his objection of the
VRA’s coverage formula that singled out some states without clear evidence that they still required
enforcement of Section 5. His ruling argued for equal treatment of states by the federal government
and expected that Congress would modify the VRA to fit the “current needs” as Roberts saw
them.19
Shelby County v. Holder in 2013 was the result of Congress’ failure to undertake such
modification, where Roberts again wrote for the majority stating “voting discrimination still exists;
no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate
treatment of the States, continue to satisfy constitutional requirements,” or the previously
established current needs justification.20 His majority ruling declares the coverage formula of Section
4 unconstitutional on the basis that current conditions do not justify such a high burden on
particular states. But Congress is free to draft new rules based on current conditions to determine
Ibid.
Ibid.
16 Ibid.
17 Ibid.
18 Ibid.
19 Ibid.
20 Schwartz, John. “Between the Lines of the Voting Rights Act Opinion.” The New York Times. 25 June 2013. Web. 11
Mar. 2015.
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who is subject to preclearance requirements, but the current rule that singles out nine states is
unconstitutional.21
Examining both opinions, Roberts believes that the goal of the VRA has been achieved and
the measures put in place to ensure equal voting rights are no longer necessary. In the NAMUDNO
ruling, Roberts’s decision-making appears to be shaped by his belief in restraint. The ruling is narrow
in that it doesn’t overrule the VRA outright, but instead suggests it must be revised. However, upon
a closer look, it could be argued that Roberts’s preference for narrow rulings is instead a disguise for
his activism and policy views. Questions from Justices Kagan and Sotomayor in Shelby County point
out the activism in Roberts’s majority opinion; Kagan when she asks: “‘Well, that’s a big, new power
you are giving us, that we have the power now to decide whether racial discrimination has been
solved? I did not think that fell within our bailiwick,”22 and Sotomayor when she questions: “Why
should we make the judgment, and not Congress, about the types and forms of discrimination and
the need to remedy them?”23 Judicial restraint is built on the premise that the benefit of the doubt
should be given to actions of elected officials, rather than appointed Supreme Court Justices.24 In the
dispute over the VRA, Kagan and Sotomayor point out that Roberts’s majority opinion does not
align with this premise, which Roberts said he would follow. In 2006, Congress “held extensive
hearings to determine whether it should once again reauthorize the VRA preclearance formula and
rule,” which it did by the vote of an “overwhelming majority.”25 Kagan and Sotomayor imply it is
the role of Congress to determine whether to reauthorize the statute, not the Court; yet, Roberts
established a new judicial standard of “current needs” in NAMUDNO and applied it in Shelby County
to narrow congressional power. Why would a Justice, who says he believes in a restrained judicial
Ibid.
Tribe and Matz. 35.
23 Ibid.
24 Epstein, Lee, and Thomas G. Walker. Institutional Powers and Constraints: Constitutional Law for a Changing America. 8th ed.
CQ Press, an Imprint of SAGE Publications, 2014. Print.
25 Tribe and Matz. 34.
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role, actively overrule another branch of the federal government? Likely in part because an activist
ruling suited his beliefs about congressional power and voting discrimination measures. Tribe and
Matz describe that “by the time he arrived on the Court, Roberts had long opposed the VRA; he
had openly professed that view while working for Ronald Reagan’s Department of Justice in
1982.”26 The ruling in this case aligns with others on the subject of race, and Roberts’s “concerns
reflect the views that prevailed at the Reagan White House: that the government should ignore
historical or even continuing inequities and never recognize or reward individuals on the basis of
race.”27
Tribe and Matz describe Roberts as being particularly moved by the issue of race, deviating
from his preference for narrow rulings, “assign[ing] himself most of the high-profile race cases” and
“issu[ing] sweeping statements of principle,”28 which echo Reagan Administration conservative
policies. He “spoke warmly” against busing and quotas in the 1980s and in Parents Involved in
Community Schools v. Seattle School District in 2007, his majority opinion states: “the way to stop
discrimination on the basis of race is to stop discriminating on the basis of race.”29 The decision, as
described in Uncertain Justice, seems centered around the precedent set by Brown v. Board of Education
and a look at history, rather than narrowly based in a conflict with the Constitution, as would be
expected by a moderate Justice. Instead, he “talks the talk of moderation while walking the walk of
extreme conservatism.”30
The foundation for the Chief’s beliefs in defending executive power was also built during his
time in the Reagan administration and has carried over to his opinions since joining the Court. In a
2010 case on presidential control of agencies, Free Enterprise Fund v. PCAOB, where the Court
Ibid.
Toobin. “No More Mr. Nice Guy: The Supreme Court’s Stealth Hard-liner.”
28 Tribe and Matz. 20-21.
29 Ibid.
30 Toobin. “No More Mr. Nice Guy: The Supreme Court’s Stealth Hard-liner.”
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considered whether the inability of the President to directly remove a member of the Public
Company Accounting Oversight Board, even for good cause, violated the separation of powers
outlined in the Constitution.31 Roberts wrote for the Court majority, expressing the view that the
structure of the Constitution empowers the President with particular “formal authority”32, in this
case to fire agency officials. Roberts’s opinion cites concerns about the growth of power of
bureaucrats and their respective agencies, a concern stemming from his political career in the Reagan
Administration where “eager to advance the deregulatory agenda Reagan had been elected to pursue,
many administration attorneys were infuriated by the need to engage in trench warfare with their
own agencies, which were staffed mainly by liberals hostile to Reagan’s program.”33 This battle
against the bureaucracy “led more than a few of Reagan’s attorneys” to believe in a constitutional
design that limits this “fourth” branch of government, and PCAOB reflects the “Chief’s skepticism
of politically unaccountable bureaucrats.”34 Tribe and Matz are correct that Roberts’s view of the
design of the constitutional system leads him to favor executive power over unelected bureaucrats.
However, it’s important to note that his view largely results from his time working in the Reagan
White House and that this formative time in his legal career certainly plays into his role on the
Supreme Court.
In the 2012 dispute over health care and President Obama’s health care reform, National
Federation of Independent Business v. Sebelius, Chief Justice Roberts held the deciding vote to uphold the
Affordable Care Act under Congress’ taxing authority in a surprising and controversial move. In his
opinion’s “style and substance, the Chief made clear his disdain for the law that he had stoically set
about rescuing,” as he described that what the Court does not consider is “whether the Act
Tribe and Matz. 214-215.
Ibid.
33 Ibid.
34 Ibid.
31
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embodies sound policy choices,” which is the job of elected officials in Congress.35 Why would
Chief Justice Roberts vote to uphold a law that he appeared to wholeheartedly disagree with? Tribe
and Matz write that he “invok[ed] the long-recognized judicial duty to save a law if any fair means of
doing so can be found,” when he ruled that the mandate could reasonably be read as a tax.36 Even
more interesting is that the Chief’s narrowing of Congress’ power to regulate commerce aligns more
closely with the joint dissent of Scalia, Kennedy, Thomas, and Alito than with the liberal justices
who also voted to uphold the individual mandate.37
Tribe and Matz posit that he may have felt it was the right constitutional decision, but they
only hint at the possibility that Roberts considered the political landscape when making his
decision.38 The Roberts Court generally receives a reputation for leaning to the right of the political
spectrum, “but the decisions that most resonate throughout history and leave their mark on the
constitutional fabric of the country almost invariably veer left.”39 This observation leads to
arguments that Chief Justice Roberts’s vote to uphold the Affordable Care Act was an effort to craft
or prevent damage to his legacy or to “deflect criticism of the court for being too partisan,”40for “no
one can accuse Roberts of ruling as a movement conservative.”41 While it is possible Roberts was
playing umpire by upholding the mandate on a constitutional technicality, another argument is that
Roberts used this narrow ruling to disguise his true views and slowly erode congressional power by
serving as an umpire who adjusted the rules to favor the conservative team later, but cloaked the
changes by calling victory for the liberals.42 Roberts’s narrow decision, while subject to criticism by
other conservative Justices like Scalia, did in fact further conservative objectives by limiting federal
Tribe and Matz. 62.
Tribe and Matz. 63
37 Tribe and Matz. 65-66
38
Ibid.
39 Hirshman, Linda. “John Roberts’ Legacy Problem.” Politico Magazine. 3 Mar. 2015. Web. 11 Mar. 2015.
40 Ibid.
41 Klein, Ezra. “The Political Genius of John Roberts.” The Washington Post. 28 June 2012. Web. 11 Mar. 2015.
42 Ibid.
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power. Even more dangerous for the future is that many may not have realized that “today’s
decision will help insulate [Roberts] from criticism” and “by securing his own reputation for
impartiality, he made his own advocacy in [areas of limiting federal power] much more effective.”43
It’s entirely possible that the main reason behind Roberts’s decision is due to how he views the
design of our constitutional system and the perception of his own role, but it is also important to
examine the political landscape and considerations Supreme Court Justices make when handing
down a controversial decision.
“In case after case, the Court’s decisions are shaped mainly by the justices’ deep beliefs about
the architecture and design of the constitutional system itself, the way its part fit together to make a
working whole…What counts is how the justices perceive their vital role in our democratic
society…”44 Tribe and Matz have largely captured the essential determinants of Supreme Court
decision making, especially in respect to Chief Justice John Roberts. However, while they discuss
several examples, Tribe and Matz don’t stress in their final conclusion the influence of a Justice’s
background before joining the Court and considerations of the current political landscape, both of
which are essential to understanding some of the Chief’s most important opinions. Roberts’s
decision-making relies on his private perception of his role on the Court, an activist disguised by
narrow rulings, and his views of equality and civil rights, executive power and the bureaucracy, and
congressional power that were developed during his time working in the Reagan White House.
43
44
Ibid.
Tribe and Matz. 319-320.
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References
Epstein, Lee, and Thomas G. Walker. Institutional Powers and Constraints: Constitutional Law for a
Changing America. 8th ed. CQ Press, an Imprint of SAGE Publications, 2014. Print.
Hirshman, Linda. “John Roberts’ Legacy Problem.” Politico Magazine. 3 Mar. 2015. Web. 11 Mar.
2015.
Klein, Ezra. “The Political Genius of John Roberts.” The Washington Post. 28 June 2012. Web. 11
Mar. 2015.
Schwartz, John. “Between the Lines of the Voting Rights Act Opinion.” The New York Times. 25
June 2013. Web. 11 Mar. 2015.
Toobin, Jeffrey. “No More Mr. Nice Guy: The Supreme Court’s Stealth Hard-liner.” The New Yorker.
25 May 2009. Web. 11 Mar. 2015.
Tribe, Laurence, and Joshua Matz. Uncertain Justice: The Roberts Court and the Constitution. New York:
Henry Holt and LLC, 2014. Print.