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Monday, July 2, 2012

Juggling the Court and the Constitution: Chief Justice Roberts

Charles Krauthammer proffers a pithy summation of the U.S. Supreme Court Chief Justice’s majority opinion on Obama’s health-insurance law of 2010: “Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.” Translation: the Court is not judicially activist, the 5-4 majority is not down party-lines, and federalism is protected. Essentially, John Roberts was able to dodge some bullets while doing what he needed to get done, philosophically. Turns out the guy is pretty smart after all. More than met the eye may have been behind President Bush’s decision to nominate him to be the Chief Justice.

Beyond judicial skill, the Chief Justice presides at the U.S. Supreme Court. He is thus oriented institutionally (i.e., as per his unique position there) to act in the Court’s institutional interest. In Krauthammer’s words, “Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the Court’s legitimacy, reputation, and stature.” That is to say, John Roberts as Chief Justice is more than a justice. To put it crassly, he was interested in what the popular press was saying about the Court while it was deliberating, whereas at least one of the other justices (Thomas) made an effort specifically to avoid looking at the press. Roberts was right to have one eye on how the reputation of the Court might be affected, and Thomas was right to have both of his eyes diverted so as not to be improperly swayed by public opinion. This is not to say that Roberts laid himself open to such influence; there is a difference between popular opinion on the law that is “under the knife” and how the Court could suffer in the public square as a result of a ruling. It is perfectly legitimate for the Chief Justice to have one eye on the latter.

The distinction between being the president of the Court—essentially presiding over it as the steward of its long-term viability—and being a “mere” justice on the Court means that the Chief Justice can be expected to be a “different kind of animal” from that of a justice. From the vantage point of the latter, the Chief Justice may look like a politician, and in fact there may be some political considerations involved in safeguarding even a long-term reputation. The mix of politician and judge seems a bit like that of oil and water—only the latter being reckoned by the jurisprud as pure. Hence John Roberts’ behavior probably struck the other justices as odd at best. However, I suspect that the people “in the know” involved in the selection of the Chief Justice had been well-aware that John Roberts was distinct in ways that would differentiate him from the other justices.

 U.S. Chief Justice John Roberts

Roberts had to be both politician and justice in crafting a majority opinion that would both protect the Court and safeguard federalism (or what is left of it, anyway). I suspect that in this dual-role, Roberts had the rare view that perhaps only leaders in Congress and the President get from time to time—namely, that of the big picture, wherein the trees of one’s days give way to the contours of the forest, both constitutionally and historically. From this summit, the United States is seen as if from a distance measured in terms of oceans of time, and “doing the right thing” can take on added importance because the precariousness of the thing awash in a sea of history yet to be made. 

 Crucially, with the perspective comes a recognition that is apart from any pressing ideological, philosophical, political or even judicial interests. The United States is perceived as an entity that is itself in need of protection apart from whatever way the currents of the day happen to be going. This recognition is what really distinguishes presiding from partisanship. The latter is relativized in importance. With the height of the position comes power such as can shift the contours of a nation’s trajectory for decades, yet also at this height is a humbling sense of responsibility. Ironically, those of less power act with much less responsibility and thus are more dangerous. The distinction here can be thought of as that which exists between transformational and transactional leadership, though the typically organizational application of transformational leadership mislabels or belies its true home, which is societal and historic. 

I suspect that in deliberating on the case, John Roberts perceived that he had not only signficant power in terms of a major piece of legislation in deciding which "side" would be the majority, but also the overriding responsibility to protect the Court itself, and indeed the viability of the U.S. system of governance (including the federal institutions and federalism itself). He was in a position institutionally that called him to rise to the occasion in terms of safeguarding the system itself. 

Theoretically speaking, being systemic in its orientation, the presiding function is consistent with  systemic leadership. The broad vision of such leadership transcends the issues and pressures of the day. To be sure, the more immediate strategic factors cannot be totally ignored. In fact, juggling the enlightened leadership vision that is oriented to the presiding function with the more short-term or issue-oriented strategic or political elements is of value in high positions. This composite in turn can be referred to as strategic leadership. Rather than being a fault or evidence of personal frailty, managing this task is quite proper to the office of Chief Justice.


Charles Krauthammer, “Why RobertsDid it,” National Review Online, June 28, 2012.