John Roberts's Tragedy is of His Own Making
In June 2012, at the end of a contentious Supreme Court term that decided, among other things, the fate of the Affordable Care Act, Chief Justice John Roberts prepared to leave for Malta, to teach a course on the court. “Malta, as you know, is an impregnable island fortress,” he joked on the eve of his trip. “It seemed like a good idea.”
Eleven years later, Malta no doubt retains its allure. The term that just ended must have been a torment for the chief. The court’s popularity has plunged to record lows; its members bicker on and off the bench; calls for the court to be packed are commonplace. Such circumstances would pain any chief justice, this one more than most. From the start of his tenure in 2005, he has painted himself as an institutionalist whose paramount concern is the court’s integrity. He conducts himself accordingly: He is decorous, almost regal; he speaks of moderation and judicial minimalism. He keeps a sovereign’s distance from modern life. In 1867, in a classic book on the English constitution, Walter Bagehot wrote that in times of change, “the most imposing institutions of mankind” maintain influence by demonstrating an “inherent dignity.” It is ironic, perhaps bitterly so, that a collapse in public esteem has become a hallmark of the Roberts court. Rarely, in recent decades, has the institution seemed less worthy of reverence.
The chief justice is portrayed by some as a tragic figure, powerless to save his court from itself. But the tragedy of John Roberts is that he does have the power to restore some measure of the court’s reputation — he just hasn’t used it. He has attempted, here and there, to restrain the court’s crusaders — by siding with liberals in the Alabama voting rights case, for example, and soundly rejecting the “independent state legislature” theory — but mostly, he has suggested that their methods and conduct are above reproach. His idea of integrity, it turns out, is a brittle thing, and self-defeating. It has put the court’s reputation at greater risk; it has made the court more, not less, vulnerable to public scrutiny and to encroachment by Congress and the White House.
This term will likely be remembered as the year the Supreme Court, led by its chief justice, ended race-conscious admissions at the nation’s colleges and universities. But the larger story of this term has been one of ethical rot and official indifference. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas drew attention — not for the first time — for their close ties to wealthy benefactors who have business before the court. Reports by ProPublica and in The New York Times show justices accepting gifts and blandishments as monarchs might: free vacations at luxury resorts; undisclosed trips on private jets and yachts; and, in Justice Thomas’s case, largess in the form of private-school tuition for a family member, secret real estate deals and donations to pet projects of the justice and his wife, Virginia Thomas. This is hardly a complete list.
As their conduct has grown more unrestrained, so has the tenor of their public statements. Justice Alito’s peremptory, self-exculpatory op-ed in The Wall Street Journal in June, denying even a hint of an appearance of impropriety, was shocking — unless you happen to have caught his comments in the right-wing echo chamber. At conferences and galas, the justice unspools his grievances — against nonbelievers, same-sex marriage, the 21st century — sounding less like a jurist than “a conservative talk-radio host,” as Margaret Talbot wrote in The New Yorker.