Thursday, September 29, 2005

A Tribute to Chief Justice Roberts Upon His Retirement from the Court

At the dawn of John Roberts’ tenure on the Court, I find it irresistible to ponder what commentators will say about the Chief Justice at the twilight of his career. When he retires decades hence, I suspect much of the praise accorded him will be about the persona of the man. Having watched John Roberts up close and personal for years while I was an attorney at Hogan & Hartson in Washington, D.C., here is my prediction of what many will say about the persona of the potentially future great Chief Justice upon his retirement from the Court:

“Much has been and will be written about John Roberts the justice and legal mind, and I will leave much of that to others more qualified than I am on that score. Suffice it to say that I have always been somewhat amused by the continuing debate over “judicial activism” versus “judicial restraint.” This debate will rage on for years, but, for the purposes of this tribute, I write about the persona of a great Chief Justice…. He is an improbable looking villain or inspirational leader -- though his critics and admirers describe him that way…. Behind that open-hearted and twinkling exterior is a mind of enormous force and determination, a mind that by most accounts has been at the forefront of molding American jurisprudence over the last three-and-a-half decades….

In Washington, where cynicism is often justified, it is quite an amazing thing to learn more and more about a “great man” and to find that he really is great, that his beliefs are genuine, that his work is his life, that his soul is a gentle one, and that he has a rare gift of perception and a tolerance of others, even when their beliefs threaten his…. From the moment of his confirmation hearings, when he was asked about his Catholicism and how it would affect his decision-making, he knew this would be an issue. And he always said that his duty as a Justice was to interpret the Constitution without regard to his own religious feelings….

In writing about Chief Justice Roberts’ impact on the Court, one must deal always with his reputation as a consensus builder, a molder of opinion, a playmaker. The Chief Justice gets quite put out when asked about this, heatedly denying it. What he does do, I think, is accurately judge his colleagues and figure out what is doable…. Chief Justice Roberts’ critics and admirers both have painted him on occasion as some sort of a political Svengali on the Court, persuading others by his charm. He hates that notion, noting that he likes to communicate with other Justices by memo when discussing business. And I don’t think it is his charm that wins cases. But it is a special kind of perceptiveness that sees the problems of a case and can translate them in a way that appeals to the critical Justice or Justices needed for a majority….

In Washington, where compromise is the name of the game and false faces are put forward as a way of life, Chief Justice Roberts is special not only for his devotion to principle, but also for his utter lack of hypocrisy. He has written for decades about the need for a wide spectrum of ideas in government, and he seems not to care one whit about the ideological views of his law clerks….

On my last visit, I’d come to record a short interview, so that we could rerun the old ones, updated, and I of course asked him if he was going to retire. "ABSOLUTELY NOT!" he yelled at me, demanding to know if I was going to quit. When I said no, he said he saw no reason that he should either. I know he did not want to retire. But he had always said that he would leave the Court if he feared he could no longer do the work. His first loyalty was to the Court as an institution.”

Sound familiar? Perhaps it should. It is a verbatim excerpt of Nina Totenberg’s tribute to Justice William Brennan upon his retirement (with the names changed of course). 104 Harv. L. Rev. 33 (1990). The substantive ends will be decidedly different, but in judicial skill as a consensus builder able to secure majorities, I predict we will see in John Roberts a conservative incarnation of William Brennan.

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