Roberts Tries to Stay Above Fray as High Court’s Standing Falls

The US Supreme Court faces plummeting public opinion, an unresolved leak investigation, and a wave of ethics concerns, but Chief Justice John Roberts has addressed little of it head on.

He’s spoken only twice publicly in the past year, both before friendly audiences. And his annual report, which is typically a chance to update the public on the state of the judiciary, made bigger headlines for its failure to discuss any of the issues now plaguing the institution.

Those who study the court say Roberts’ approach is deliberate. It’s meant to “keep the ship moving forward” while the court attempts to weather the storm, said Stephen Wermiel, an American University Washington College of Law professor and expert on Supreme Court history.

Though this plan of action aligns with Roberts’ view of the court as apolitical, legal scholars say it risks contributing to the public’s perception of the court as hypocritical and out of touch.

‘Above the Fray’

Roberts’ two speaking appearances in the past year were before closed-door audiences of fellow judges, lawyers, and judicial staff at federal circuit court conferences.

Roberts called last spring’s leak of the court’s draft decision overturning Roe v. Wade “absolutely appalling” while speaking at the US Court of Appeals for the Eleventh Circuit conference in May.

Neither of the judges interviewing Roberts on stage at the Tenth Circuit Judicial Conference in September asked him about the leak or the subsequent investigation.

In that appearance, Roberts said disagreeing with a decision “is not a basis for questioning the legitimacy of the court,” in an apparent response to Justice Elena Kagan’s criticism that people are “rightly suspicious” of major changes in the law that result from new membership. But he didn’t mention the court’s ruling in Dobbs v. Jackson Women’s Health by name—the ruling that overturned the right to an abortion.

Roberts sincerely believes the Supreme Court is an apolitical, noble institution and he’s going to continue to talk and act like it’s in the face of whatever evidence to the contrary exists, Cornell Law School professor Michael Dorf said.

“He’s certainly not a naive person,” Dorf said. “He has to be aware of the criticism and the disagreement with his conception of the court. It’s just that part of that conception leads him to want to appear above the fray.”

The Supreme Court’s press office didn’t comment for this story.

‘Soft Touch’

Roberts, 68, joined the court as chief justice in 2005 after first being tapped by President George W. Bush to be an associate justice. The unexpected death of Chief Justice William Rehnquist, for whom Roberts clerked, prompted Bush to renominate him for the court’s top role as first among equals.

Roberts got a good sense of the job from watching his former boss, whom Roberts clerked for while Rehnquist was still an associate justice. He followed the lead of Rehnquist, who Roberts described as leading “with a soft touch.”

“Rehnquist had a good sense of when he should assert his authority, as chief. And when he shouldn’t,” Roberts said at a 2016 New England School of Law event. “That is something you try to be careful about.”

In the 2016 interview, Roberts also explained his careful approach to dealing with criticism of the court. “The Framers established a court in a way that we could not care about that criticism,” Roberts said, adding that the justices have life tenure so that they “are not susceptible to being swayed by that sort of criticism.”

But staying above the fray is much harder to do in an era of social media and an multitude of media platforms, said New York University School of Law professor Melissa Murray. “People are asking questions and we just don’t live in an age where because you starve it of oxygen means someone else is starving it of oxygen,” she said.

Business as Usual

Roberts isn’t the only justice keeping up appearances as if everything is business as usual among the justices.

Justice Brett Kavanaugh said at an event Jan. 26 that relations among the justices were “quite good,” despite the fact that they were dealing with divisive issues, including voting rights and affirmative action.

Other justices—on the right and the left—have been more forthcoming about criticisms of the court, particularly when it comes to its decision in Dobbs.

Sotomayor warned that radical changes in the law could undermine the country’s faith in the legal system at a Nov. 15 event. On the other side of the ideological spectrum, Justice Samuel Alito bemoaned criticisms of the court’s legitimacy at an October appearance, saying it puts the justices in danger.

Losing Control

Court watchers point to the Dobbs decision as the latest example of Roberts’ inability to temper the court’s hard right turn and or how quickly it changes the law.

Roberts took a middle ground approach in Dobbs, making it easier for states to ban abortion earlier, without outright overturning the nearly 50-year-old constitutional right to an abortion. No other justices joined his concurring opinion.

While the chief remains the administrative leader of the court that colloquially bears his name, he has few avenues for swaying public opinion.

“Roberts is in a tough spot,” said South Texas College of Law professor Josh Blackman, who added that Roberts now “has no control, he has no sway.”

Roberts held the swing vote for a short period after Justice Anthony Kennedy retired, but quickly lost it when Justice Ruth Bader Ginsburg died in 2020 and Justice Amy Coney Barrett’s arrival cemented a 6-3 supermajority.

Recent developments at the court suggest there are cracks in Roberts’s administrative leadership, too, Wermiel said.

He pointed to the court’s inconclusive leak investigation, a historic delay in issuing its first opinions, and the increased length of oral arguments that sometimes go on for hours despite the court’s previous practice of sticking strictly to the allotted time.

Roberts chose to handle the investigation into who leaked the draft abortion opinion in house, assigning the task to the court’s marshal, Gail Curley, instead of bringing in a federal investigatory agency like the FBI. Court watchers say it was a poor choice and missed opportunity to restore public trust in the court.

“The way that investigation was handled, on terms dictated by the chief justice, just seems to have thrown the court even more into disrepute with the public,“ Murray said, adding that it looked like the court didn’t really want to find out who the leaker was.

Tricky Position

Roberts has resisted congressional efforts to adopt an ethics code for the justices and has so far hasn’t made any changes on his own, despite growing concerns among progressives about the justices’ ability to remain impartial.

Justice Clarence Thomas has been a focal point of this debate after his wife testified before Congress that she urged former White House Chief of Staff Mark Meadows to challenge the 2020 election results.

“Ginni Thomas is texting Mark Meadows in the middle of a siege on Congress and he doesn’t even mention it,” Murray said. “It’s sort of like are we on the same planet?”

Still Blackman said it’s tricky because if Roberts addresses one issue publicly but not another, it could lead some to conclude he views certain issues as not all that important.

Roberts did respond publicly in 2018 after Trump called judges partisan. It was a rare rebuke of criticism to come from him.

“Roberts should either just stay silent altogether or perhaps be at little more consistent with how he puts out messages,” Blackman said.