Chief Justice John Roberts and the “Privilege” of Seeing the World from Behind Fences and Barricades

Posted in: Other Commentary

On May 24 Chief Justice John Roberts went to the 100th annual meeting of the American Law Institute to receive its Henry Friendly Medal. The ALI website says that the medal recognizes “contributions to the law in the tradition of Judge Friendly.”

As Justice Elena Kagan said in introducing Roberts, that tradition valorizes the “judicial craftsman,” the “lawyer’s mind,” and the ability to “make sense of legal materials.” Kagan also called Roberts someone who is “careful, restrained, and principled” and who has never written “a bad sentence.”

But there was a conspicuous absence in Kagan’s remarks—not a word about Roberts’s understanding of, or concern about, the people whose lives his carefully crafted sentences would unalterably change. She said nothing to suggest that Roberts is interested in the litigants and others whose legal disputes emerge from pain, suffering, and legitimate grievance.

Kagan made no mention of the simple human and judicial virtue of empathy. But, in a subtle dig, she reminded her audience that the Court’s rulings “matter in people’s lives and that shouldn’t be forgotten.”

Roberts’s own speech accepting the ALI medal is evidence that that simple lesson has not registered with the Chief Justice and that he is at ease and comfortable with a privileged life.

It came through in a truly startling admission that the hardest decision Roberts has had to make during his years on the Supreme Court was not a “first amendment case,” or a “death penalty case,” or a “major separation of powers case.”

It was rather whether “to erect fences and barricades” around the Supreme Court.

When he talked about that decision, the Chief Justice offered no context, no explanation, no connection to the events, or the case, that would bring people to the Court grounds where they would confront those fences and barricades.

Roberts’s judicial craftsmanship, his lawyer’s mind, is a defense of a certain kind of privilege, the privilege of living in a world of legal abstractions and principles that act like fences and barricades to keep the sights, smells, and travails of daily life from sullying his work.

That no one would praise Roberts for understanding those facts is not surprising to anyone who has followed his career.

Indeed during his confirmation hearings before the Senate Judiciary Committee, Roberts promised that he would be an umpire. “Umpires,” Roberts said, “don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

As Jeffrey Toobin reminded us, then-Senator Barack Obama understood what this conception of judge as umpire would mean if Roberts was confirmed to a seat on the Supreme Court:

In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.”

Obama, Toobin concluded, “did not trust Roberts’s heart.” Roberts’s ALI acceptance speech was just the latest reminder of Obama’s wisdom.

The Chief Justice’s heartlessness was on display in the comment he made about his most difficult judicial decision.

From what Roberts said about the decision to put up a fence at the Court, you would never know, as Fox News reported at the time, that it was put up “two days after Politico published a leaked draft opinion striking down the abortion precedent Roe v. Wade (1973).”

For what kind of judge would it be harder to decide whether to put up a fence than to decide whether to remove a right to reproductive freedom from the Constitution?

Roberts’s easy privilege also came through when he talked of his initial reluctance to give up his love of history to embrace a legal career.

He told of a transformative moment in his life when he took a cab ride from Boston’s Logan Airport back to Harvard, where he was then an undergraduate history major. During the ride, the cab driver asked him what he was doing, and Roberts responded that he was a history major at Harvard.

The cabbie responded, “Well, what do you know, I was a history major at Harvard.”

When the audience’s laughter subsided, Roberts said, “That’s when I decided to give law a try.”

A good joke, perhaps, but also a revealing glimpse of the life that the Chief Justice wanted for himself.

Finally, Roberts also recounted a story of three stone masons that he attributed to Justice Robert Jackson. A passerby asks each of them why they are doing what they are doing.

The first responded simply, “I am making a living.” The second replied, “I am arranging these blocks in a particular pattern that I’ve been instructed to follow.” The third, on Roberts’s telling, lifted his eyes to the heavens and said, “I am building a cathedral.”

For Roberts, a good judge is always “building a cathedral.” Noble ambition, but again far removed from the lives of people who toil to make a living or to please bosses who give them instructions and have power over them.

Roberts’s speech before the ALI suggests just how comfortable he is with judging in a way that keeps the world at bay and exemplifies the confidence of someone whose life took him to Harvard and beyond.

Listening to the ALI speech, I was reminded of what the Chief Justice told his son’s ninth-grade class at its graduation in 2017. There, Roberts explained why he would not “wish you good luck and extend good wishes to you.”

As he said at the time:

In the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice.… I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either…. I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion.

Valuing justice, acknowledging that success and failure are not determined by merit alone, and learning compassion—if only Chief Justice Roberts heeded his own advice, he would be a better judge, a judge worthy of medals and awards for achievements greater than never having written a bad sentence.

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