A Thought About Chief Justice Roberts

When Roberts was nominated to the Supreme Court, one especially remarkable biographical detail came to light: every one of his friends interviewed by the media, conservative, liberal, and otherwise, swore they had never heard him express any opinion in private conservation on any controversial Supreme Court cases. How could it be that a top Washington lawyer, a veteran of the Reagan Administration who eagerly expressed rather strong political and legal views while serving in that administration, had avoided talking about any of great constitutional and other cases of the day?

Well, it suggests that he intentionally avoided discussing any of the cases, lest he say something that could get him in trouble in judicial nomination hearings in the future, or otherwise somehow interfere with his political career. This suggests a few relevant things about Roberts:

(1) He is extremely self-disciplined.

(2) He is extremely risk-averse. Besides avoiding discussion of any Supreme Court cases with his many high-powered DC acquaintances, as disclosed during his nomination battle, while he participated in Federalist Society events he never became a member. The most likely reason that a young conservative DC lawyer would avoid doing so is that he thought it could be a negative in future confirmation hearings. This risk-aversion seems have been on display in his unwillingness to provide a fifth vote to invalidate Obamacare.

(3) Consistent with the theory that his opinion is part of a long-term strategy, Roberts exhibits both farsightedness and a confidence in his own role in history. How many thirty-something DC lawyers, no matter how strong their credentials, censor their private conservations because they think they may be nominated to the Supreme Court someday? Many individuals, including John Yoo in today’s WSJ, share my skepticism that Roberts is pursuing what seems to be a tenuous and unrealistic long-term strategy. But perhaps it wouldn’t be the first time.

For those disappointed with Roberts’ opinion, it may suggest a rule for future nominations: it’s better to nominate the type of individual who is forthright in his views, and if asked about his participation in the Federalist Society, would defend the organization and his membership therein (which really tells you nothing more than that the individual in question is not on the “left”). Whether such a person is confirmable nowadays is another question.