Sometimes Chief Justice John Roberts writes beautifully. When he does, his writing is understated; he eschews Justice Elena Kagan’s flashiness and Justice Samuel Alito’s wit. And yet, Roberts’s writing can be even more effective than theirs.
Sometimes, however, his writing is colorless and even confusing. Something that is present in his beautiful writings goes missing in his ho-hum scripts. The missing component seems to be a principled defense of the rule of law. When the Chief passionately defends the rule of law, no one can match his rhetorical skill. But when he writes to defend something else—usually a political compromise—his skill abandons him.
An example of Roberts at his finest appears in his 2022 Year-End Report on the Federal Judiciary. Last year was a historically tumultuous one for the judiciary. Partisan attacks on its “legitimacy” reached a fever pitch, fences went up around the courthouse, armed agents had to surround the Justices’ homes and families, and one angry man planned to assassinate Justice Brett Kavanaugh. None of this appears in Roberts’s report, and yet, the brilliance of it is that it’s all there.
In the report, Roberts tells the story of U.S. District Judge Ronald Davies who faced threats on his life when he chose to enforce Brown v. Board of Education and desegregate schools in Little Rock, Arkansas. “Judge Davies had no idea what cases he would draw,” Roberts wrote, “But when it came time to rule in the school desegregation litigation, Davies did not flinch.” He stood uncowed in the face of threats to his and his family members’ lives and stood up for the rule of law.
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In retelling Judge Davies’s story, Roberts evokes the mobs that tried to pressure Roberts’s colleagues to change their votes after the leaked Dobbs draft majority opinion. He condemns the mob and defends his colleagues without ever mentioning them. More than that, by invoking a moment in American history that, today, we all recognize as a profound moral victory, Roberts puts his colleagues on the right side of history for ignoring threats and following the law where they thought it led.
But recall that Roberts did not join the majority in Dobbs. He disagreed with his colleagues. Nevertheless, his report defends them. What it shows, then, is that Roberts cares less about that disagreement than about his colleagues’ ability to follow without fear the law as they see it.
And there’s the secret to Roberts’s beautiful prose: He is defending the rule of law without compromise.
It’s revealed elsewhere, too. In Parents Involved v. Seattle School District, he wrote an elegant opinion that stopped a Seattle school district from assigning students to schools based on the color of their skin. As with his Year-End Report, Roberts wove the history of Brown v. Board into his opinion to show that what the schools do today for “benign” reasons is no different in principle than what racists did during Jim Crow. Neither benign nor hostile discrimination aligns with the rule of law, which draws no arbitrary distinctions between people. The opinion distills this idea in what is probably Roberts’s best-known line: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Perhaps his most skillfully written opinion is Cedar Point Nursery v. Hassid, a case that involved a California regulation that allowed labor organizers to enter farmers’ lands without permission to try to unionize their workers. This case sparked a judicial duel between the Chief Justice, who wrote the majority opinion striking down the regulation, and Justice Stephen Breyer who wrote a dissent defending it. Breyer thought that the Constitution’s protections for private property ought to yield to California’s regulation because our complex world needs to be ordered by strong governments. Breyer admitted that California’s regulation was intrusive and costly, but “[b]etter the devil we know,” he said, than risk weakening government.
The Chief called Breyer’s opinion “thoughtful” and “considered” and then eviscerated it. He did not deride or poke fun at Breyer with dazzling turns of phrase as Kagan or the late Justice Antonin Scalia might have done. Instead, he summoned up the intellectual tradition of the Founding to show how the complexities of modern society “only reinforce the importance of safeguarding the basic property rights that help preserve individual liberty.” After all, the more powerful a government gets, the more power it wants, and the rule of law is the most effective constraint.
With a single sentence and a citation to a string of past cases, Roberts showed that Breyer’s argument was the same old argument that has been repeated and rejected over and over again for nearly a hundred years. “As for [Breyer’s] considered dissent,” Roberts wrote, “it concludes with ‘Better the devil we know . . .’ but its objections, to borrow from then-Justice Rehnquist’s invocation of Wordsworth, ‘bear the sound of Old, unhappy, far-off things, and battles long ago.’”
This sort of artistry is not always present in the Chief’s writings. Some of them lack not only the rhetorical brilliance of Cedar Point Nursery and his Year-End Report, but even intellectual coherence.
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His opinion in NFIB v. Sebelius, which upheld the Affordable Care Act’s individual mandate to buy health insurance, was shoddy work, dodging or confusing the legal issues. Two legal scholars described it best as “a remarkable exercise in broken-field running.” Likewise, his opinion in DHS v. Regents ducked and weaved to avoid answering the legal question at the heart of the case: whether President Obama’s Deferred Action for Childhood Arrivals (DACA) program was lawful.
In these cases, unlike his Year-End Report, Parents Involved, and Cedar Point Nursery, Roberts did not defend the rule of law. Instead, he compromised principle for politics. These opinions, and others that share their rhetorical drabness, tried to avoid taking sides in fraught political debates. But in so doing, Roberts let politics, not law, dictate the result. And because there can be no passion in sacrificing principle to politics, his skill left him.
Roberts’s institutional instincts may be the cause of this problem. It seems that he thinks the rule of law must sometimes yield to protect the institution’s perceived “legitimacy.” But in this, Roberts forgets that the rule of law has a legitimacy all its own. Deciding cases based on politics does not. And picking an outcome because it aligns with a political middle position is just as political as picking an outcome because it favors one faction or another.
Roberts ought to know this. This principle mirrors the one on which he built his Parents Involved opinion: Discrimination for positive purposes is just as discriminatory as discrimination for evil purposes.
The Chief Justice is sometimes the best writer on the court, but only when he defends principles. He ought to more consistently remember that defending principles is a judge’s principal job.
This piece originally appeared in The Federalist Society