Chief Justice John Roberts Jr. was in an expansive and reminiscing mood earlier this month in his talk at the Rehnquist Center at the University of Arizona Rogers College of Law. In the Feb. 4 talk (video available here), Roberts also revealed one of his key strategies for achieving consensus on the Court through the assignment of opinion-writing.
Roberts recalled Rehnquist, for whom he clerked, as one of the "two or three most significant successors" to the great chief justice, John Marshall. Rehnquist personified the saying, "Clothes do not make the man," Roberts said, recalling his "Buddy Holly" glasses, his Hush Puppy shoes, and his ties that were "never fashionable."
Rehnquist's legacy, Roberts said, was embodied in two of the questions he would ask most often of oral advocates before him, namely, "What does the statute say?" and "Which of our cases support that proposition?" That kind of discipline brought a "seismic shift" from the "more fluid and wide-ranging" approach to constitutional law in prior courts that was "more in the realm of political science," to one based more on legal text and legal precedent. As Adam Liptak in the New York Times noted today, Roberts linked that shift as well to the fact that every member of the current court is a former appeals court judge.
Roberts indicated he was surprised to learn as chief justice himself how extensive his "diplomatic responsibilities" are, meeting many visiting judges from countries seeking to establish the rule of law. He also confessed he is "totally unqualified" to be chancellor of the Smithsonian Institution, one his his ex officio jobs as chief justice. "I'm sure my colleagues would agree." On another matter of administration, the budget, Roberts quipped that he is trying to convince the other branches that several courthouse renovation plans around the country are "shovel-ready infrastructure projects" that deserve funding from the stimulus package.
Interestingly, Roberts also shed some light on his role as the justice who assigns opinion-writing to his colleagues -- at least when he is in the majority. Roberts likened the task to working a Rubik's Cube. "Everything has to fall in shape to get it perfect." He has to be mindful of spreading the work evenly in terms of number, difficulty and even topic matter of the cases. No one should get all the criminal cases, he said, for example, because justices believe it should be a "generalist court."
Then Roberts said, "One of the most significant things I do is jurisprudential." He explained that if one justice in the majority wants to write a broad opinion that only four other justices will join, and another wants to write a narrow opinion that seven or eight others will join, he is "more likely" to assign it to the latter justice. Why? Because in Roberts' view, as he put it in Arizona, achieving broad consensus on a narrow position is "the way the law ought to proceed."
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