Is John Roberts a good judge? Ten years ago, President Bush appointed him chief justice of the United States. His anniversary, coinciding with the Supreme Court’s reconvening last month, naturally caused lawyers, scholars, and politicians to reflect upon his legacy on the Supreme Court.
And all the more so in light of his performance in the waning days of the Court’s previous term, when Roberts issued two of his most controversial decisions. In King v. Burwell, he surprised many by rescuing the Obamacare health insurance exchanges through what many would call a strained statutory interpretation. The next day, in Obergefell v. Hodges, he penned perhaps the most emphatic dissenting opinion of his career, calling the five-justice majority’s constitutionalization of same-sex marriage rights “an act of will, not legal judgment,” with “no basis in the Constitution.”
Roberts prefers to avoid “legacy” talk. “I don’t think it’s terribly fruitful to try to think about that,” he said in a 2012 forum at Rice University. The school’s president, David Leebron, had asked him, “after your time on the Court, how would you like historians to remember your leadership of the Court and what it represented?”
When Roberts eventually answered, he put it simply. “I would like people to think that I was a good judge,” he told Leebron, his former Harvard Law Review colleague. “Nothing more or less than that.”
So has Roberts been a good judge? After a decade on the Court, there are many who would say he falls short—even far short—of that goal. Despite his efficient management of the Court’s work (especially at the increasingly cacophonous oral arguments), his skill as a writer of concise yet literary judicial opinions, and his professed goal of promoting judicial “self-restraint,” he stirs criticism from both sides of the political aisle.
But debate over how the political left and right see Roberts’s work on the Court has overshadowed a much more interesting and difficult question: Through what lenses does Roberts see his own work on the Court? When Roberts asks himself whether he is a “good judge,” against what rubric would he measure his efforts?
This is no easy question, especially because Roberts eschews any particular judicial methodology against which his work might be measured. His conservative brethren share at least some commitment to “originalism” or “textualism,” a methodology focused on ascertaining the original meaning of the Constitution and other laws. Granted, justices Antonin Scalia, Clarence Thomas, and Samuel Alito differ in the extent to which they temper originalist theory with prudential judgment, such as considerations of legislative history and judicial precedent. Justice Thomas is the Court’s purest and most reliable originalist. Justice Scalia has long drawn at least a slight contrast with Thomas, calling himself a “fainthearted originalist.” And Justice Alito, open to still more methodological flexibility, once told the American Spectator that he considers himself “a practical originalist.” But by placing themselves on that spectrum, the three justices provide at least one frame of reference for evaluating their work, a common starting point from which to discuss their own particular nuances.
Roberts, by contrast, does not call himself an “originalist” at all. “Like most people,” he told senators at his Supreme Court confirmation hearing, “I resist the labels.” At a previous confirmation hearing, for his 2003 appointment to the U.S. Court of Appeals for the D.C. Circuit, he told senators, “I don’t have an overarching, guiding way of reading the Constitution. I think different approaches are appropriate in different types of constitutional provisions.”
He explained this even more bluntly in his 2012 discussion at Rice:
I do not have an overarching judicial philosophy. Maybe at the end of my time on the Court, somebody will look back and say, “This was his philosophy.” . . . I have certain ideas about how you should approach a particular problem. Obviously you begin with the text of the Constitution. I put a lot of weight on what the Founding Fathers were trying to accomplish. . . . But it’s not a categorical view about what you can look at or can’t look at. I mean I sort of approach each case trying to draw on as much of the precedent and other sources as I can.
In acknowledging that future scholars might try to ascertain the principles guiding his work, Roberts comes full-circle. For as a history student at Harvard College, he ventured precisely the same approach to one of America’s greatest statesmen and Supreme Court advocates.