Five Chiefs Read online

  Depriving a state of the mysterious right to protect its dignity from its own citizens is equally necessary to protect the federal rights of those citizens.

  Justice James Wilson, who played a leading role in the drafting of our Constitution, made the point better than I can. Before the Eleventh Amendment was adopted, he made this comment on sovereignty on this side of the Atlantic:

  To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves “SOVEREIGN” people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.

  Like the gold stripes on his robes, Chief Justice Rehnquist’s writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic. I am hopeful that his writings in this area will not be long remembered.

  As in both earlier and later years, on Friday, December 8, 2000, Maryan and I took our granddaughters, Hannah and Haley, and their parents to the annual Christmas party at the National Gallery of Art on Constitution Avenue. It is always an especially enjoyable occasion that gives youngsters an opportunity to converse with a juggler, a clown, a magician, and a man on stilts and to engage in treasure hunts and coloring exercises while learning something about great works of art.

  Earlier that day, the Florida Supreme Court had issued an opinion ordering state election officials to spend the weekend conducting a manual recount of votes cast in that state in the presidential election. On the basis mostly of voting machine tallies, George Bush led Al Gore by a statewide margin of 537 votes. Based largely on the fact that in Miami-Dade County about nine thousand ballots registered as nonvotes by the machines had never been manually reviewed, the Florida court had decided that state law required a recount. Promptly responding to that decision, counsel for Bush filed an application in the United States Supreme Court asking us to halt the recount by entering a stay. When I bumped into Justice Stephen Breyer at the Christmas party, we had a brief conversation about the stay application. We agreed that the application was frivolous. To secure a stay, a litigant must show that one is necessary to prevent a legally cognizable irreparable injury. Bush’s attorneys had failed to make any such showing.

  Chief Justice Roberts and family and Justice Stevens and family at the National Gallery of Art Christmas party on December 8, 2006.

  Pictured in front row: Josephine Roberts, Jack Roberts, Maryan Stevens, Justice Stevens, Haley Mullen, and Kevin Mullen. Pictured in second row: Jane Roberts, Chief Justice Roberts, Hannah Mullen, and Sue Mullen.

  I found the case particularly easy because I had been confronted with a similar issue as a member of a three-judge district court shortly after becoming a court of appeals judge in 1970. In Roudebush v. Hartke (1971), I had dissented from an order prohibiting state election officials from conducting a recount of the votes cast in the race for the office of U.S. senator from Indiana. I wrote that the plaintiff had “failed to prove that he would suffer irreparable harm if the recount were permitted to proceed.” Observing that the United States Senate would make the final determination as to which candidate to seat, I explained that the Senate’s decision likely “would be facilitated, rather than impaired, by the availability of a fairly conducted recount.” The Supreme Court agreed, noting that Indiana had determined that recounts were sometimes “necessary to guard against irregularity and error in the tabulation of votes.” There was “no reason to suppose that a court-appointed recount commission would be less honest or conscientious in the performance of its duties than the precinct election boards that initially counted the ballots,” and it concluded that it “would be no more than speculation to assume that the Indiana recount procedure would impair… an independent evaluation by the Senate.”

  Because the Constitution also lays out procedures under which Congress determines which presidential candidate has won, the history of Roudebush made it particularly easy for me to conclude that we should allow the Florida recount to proceed. Justice Breyer expressed the same opinion, and we went our separate ways confidently assuming that the stay application would be denied when we met the next day.

  On Saturday, the Court—by a vote of five to four—granted the stay, ordered the parties to file written briefs on Sunday, and set the case for argument on Monday. After the argument we held a brief conference, and on Tuesday we issued six opinions. To the best of my knowledge no justice has ever cited any of them. What I still regard as a frivolous stay application kept the Court extremely busy for four days.

  VII

  John Roberts Jr.

  John G. Roberts Jr., Chief Justice (2005–)

  AS CHILDREN IN MICHIGAN CITY, Indiana, well over a century ago, my mother and the daughter of the warden of the Indiana state prison were neighbors and playmates. My mother later taught English in high school in Michigan City; after she and my father married, in 1907, they built a summer home in Lakeside, Michigan, a few miles away. When I was in grammar school and, later, high school, our family spent our summers in Lakeside, and in 1961, I built my own summer home there. I took flying lessons at the nearby Oselka Airport, a few miles from Three Oaks, Michigan. I have always loved that part of the Midwest.

  In 1969, John Roberts was a high school freshman in a boarding school in La Porte, Indiana, a few minutes away from Oselka Airport. His home was in nearby Long Beach, Indiana, just north of Michigan City, and his father commuted to work at the Bethlehem steel mill in Burns Harbor, Indiana, passing by Michigan City and the venerable prison that is still operating today. At that time, I kept my plane at Oselka and often landed at the small airports in La Porte and Michigan City. It is possible, I suppose, that John saw my plane in flight during those years or that I saw him or his home from the air. But even though it is unlikely that our paths actually crossed then, our shared knowledge about that part of the Midwest helped us form a solid friendship when we became colleagues in Washington, D.C., many years later.

  John’s future differed dramatically from the future of Oselka Airport. Years later, while considering a Supreme Court case involving the constitutionality of state laws regulating the interstate transportation of garbage, I was shocked to learn that the Oselka landing strip where I had done touch-and-goes when I was learning to fly was gone. It had become a garbage dump.

  John’s subsequent years, by contrast, were marked by a series of stunning accomplishments. After ranking first in his high school class, he graduated from Harvard College summa cum laude in 1976. In each of the three summers when he was a student at Harvard, he worked as an assistant electrician in the Bethlehem steel mill in Burns Harbor, Indiana. He was frequently shocked on the job—not by startling, newfound knowledge but rather by electrical discharges that arose when he connected or disconnected terminals. His summer earnings helped to pay for his college education. In 1979 he graduated from Harvard Law School magna cum laude. A year later, Henry Friendly, one of our greatest federal judges, hired him as a law clerk. Then Justice Rehnquist selected the man who would ultimately succeed him as chief justice of the United States to be his law clerk.

  I am sure that it was John’s legal acumen rather than his skills as a tennis player that motivated Bill Rehnquist’s decision to hire him. I have reached this conclusion for two reasons. First, one of Roberts’s co-clerks, Dean Colson, had competed at Wimbledon and was obviously the clerk best qualified to serve as the justice’s partner during the Rehnquist chambers’ weekly doubles games. (My own recollection reinforces this conclusion. I played against Colson in a doubles game one weekend. His first serves were invisible bullets and even his second serves had topspins that produced gigantic bounces and made them unreturnable for me.)

  Second, although John was a successful high school athlete, tennis was not his best sport. He was captain of the
football team, playing in the backfield on both offense and defense. Like my friend Byron White, who was an All-American at Colorado, John played sixty-minute games and was a member of both the offensive and defensive squads. (Having had a law partner—Jack Barry—who also played sixty minutes of the game, in his case for an undefeated Notre Dame team, I have always been impressed by that statistic whenever I watch the modern version of the sport.) Roberts was also a member of the wrestling team and had won all but two of his matches in the 126-pound class. In order for John to compete he had to beat a teammate of the same size in a practice match; the loser of the practice match had to compete against larger and presumably stronger opponents. John won those practice matches on a fairly regular basis. (Whether it was owing to a coincidence or John’s access to a scouting report, he lost the practice match when the 126-pound opponent he would have competed against next happened to be the state champion at that weight.)

  John’s interest in football included occasional attendance at Notre Dame games in South Bend. Despite his respect for that team and that school, however, he did not always root for the home team. His father was a graduate of the University of Pittsburgh, and family loyalty took precedence over local enthusiasm when Pitt was the visiting team.

  Following his clerkship, John Roberts had careers in both the executive branch of the federal government and in private practice that eminently qualified him to be a Supreme Court justice. His public service included stints as a special assistant to the attorney general, associate counsel to the president, principal deputy solicitor general, and a judge on the United States Court of Appeals for the D.C. Circuit. His private practice was equally successful and included a partnership at the firm of Hogan and Hartson and the completion of thirty-nine oral arguments in our Court before joining our bench. Although that figure is impressive—it exceeds, I believe, the numbers for such great advocates as Thurgood Marshall and Ruth Ginsburg—it is only a fraction of the arguments made by Daniel Webster, John W. Davis, Erwin Griswold, and a lawyer from Virginia named Walter Jones, who made scores and scores of arguments during the antebellum period.

  But far more important than the quantity of John Roberts’s arguments was the quality. He was not only articulate and persuasive but also totally honest in his descriptions of the facts and the relevant legal precedents in every case. Having heard all of those arguments, I consider myself well qualified to testify that he was a superb lawyer.

  In my judgment, both at the time the decisions were made and now, he was the obvious first choice to fill any vacancy that might occur on the Court while George W. Bush was president. Thus, I welcomed the decision to select him to succeed Justice O’Connor when she announced her retirement and the subsequent decision to make him the chief justice when Bill Rehnquist died.

  After the Senate confirmed John Roberts’s appointment as chief justice, it became my duty to administer the oath of office in a ceremony at the White House. I was then the senior justice on the Court and had been acting as its chief justice since Bill Rehnquist’s death. Performing that duty presented me with a problem because I believe that the ceremony should take place at the Supreme Court whenever possible. The three branches of our government are separate and equal. The president and the Senate play critical roles in the nomination and confirmation process. After that process ends, however, the “separate but equal” regime takes over. (Chief Justice Rehnquist, as I have mentioned, properly treated Senator Specter like any other litigant.)

  When I was sworn in as a justice, President Ford came to the Court and, as a member of our bar, participated in the ceremony. In 1981, when Sandra Day O’Connor was sworn in, President Reagan came to the Court and witnessed the administration of her oath. When Chief Justice Rehnquist and Justice Scalia were sworn in, however, the ceremony was held in the White House. And when Reagan’s next appointee, Anthony Kennedy, was sworn in, not only was the ceremony conducted at the White House but the president participated with remarks that welcomed his new appointee as a judge who would follow the law rather than make it up. I thought the president’s remarks were both offensive and inappropriate and therefore decided not to attend similar ceremonies at the White House in the future.

  The first President Bush and President Clinton followed the Reagan precedent. Justices David Souter, Clarence Thomas, Ruth Ginsburg, and Stephen Breyer were all sworn in at the White House. I did not attend any of those ceremonies. In each case, I explained to my new colleague the reason for my absence, assuring each that it was not motivated by any regret about his or her addition to our team. I was tempted to adhere to that lonely position when asked to come to the White House to administer the oath to John Roberts but concluded that a refusal to participate would have been widely misinterpreted as manifesting disapproval of his appointment.

  Subsequent events have convinced me that I made the right decision. My refusals to attend White House ceremonies may have affected President Obama’s decision to attend the investitures of Justice Sonia Sotomayor and Justice Elena Kagan at the Court. And, despite my misgiving, I like to think that my participation in the Roberts ceremony reflected and supported the view that our common interest in administering justice impartially is far more important than any individual’s interest in advancing his or her own point of view. I think Chief Justice Roberts’s decision to attend President Obama’s State of the Union address in 2011 despite the debate that had ensued after the president’s criticism of the Court’s decision in the Citizens United campaign financing case in his address a year earlier also reflected and supported that view. Moreover, the first decision that he made in his capacity as chief justice of the United States was unquestionably correct and consistent with his role as the first among equals: he decided not to decorate his robes with gold stripes.

  In John Roberts’s first term as chief justice, 8,521 cases were filed in the Supreme Court. That is almost exactly twice the number filed in Bill Rehnquist’s first term as chief justice: 4,240. More striking than that statistic, however, is the fact that there were only about half as many oral arguments in Roberts’s initial term as in Rehnquist’s—90 for Roberts and 175 for Rehnquist. What had been a docket that required each of us to write about twenty majority opinions in each term during the Rehnquist years was essentially cut in half. While I had been the justice who most frequently voted to deny petitions for certiorari when Warren Burger was chief justice, I think I was the one who most frequently voted to grant in cases that were denied while I was still on the Court during the Roberts regime.

  Although I cannot confidently explain the reasons for that dramatic reduction of the number of oral arguments, I can identify three possible causes. First, of course, is the repeal of much of the Court’s mandatory jurisdiction in 1988; before that date, in each term the Court would probably have disposed of as many as ten unmeritorious appeals without argument if it had had the discretion to do so. Second, in my judgment the number of cases in which the courts of appeals have reached conflicting conclusions is smaller than it once was; more significant, increasingly careful analysis of cert petitions has frequently persuaded the Court that what at first blush appears to be an important conflict is in fact either not a conflict at all or insignificant. Third, I believe that the use of a cert pool in which one law clerk prepares a single memo for most of the justices creates a subtle bias against granting review in close cases. A recommendation to deny is less likely to produce an unfavorable reaction from any of the justices than a recommendation to grant and is therefore attractive to a risk-averse clerk. And even though the justices decide for themselves whether to grant, a busy judge’s first impression of a case is sometimes sufficient to control his or her final vote.

  Whatever the explanation may be, it is now clear that the arguments favoring the creation of an intermediate court of appeals—the primary one being that it would ease the burden on the Supreme Court—that were debated at some length when Warren Burger was the chief are totally unpersuasive today.

 
; With regard to all of his special responsibilities, John Roberts is an excellent chief justice. Perhaps he is not quite as efficient as his predecessor when presiding in open court or in the Court’s conferences, but his occasional and minor deviations from strict enforcement are well justified. His own extensive experience as an advocate may have made him slightly more generous in allowing a few comments after the red light is turned on, but in my judgment those allowances have always been appropriate.

  In our private conferences he was always a well-prepared, fair, and effective leader. For instance, when I added cases to the list of cert petitions to be discussed—that is, when I asked that the conference discuss petitions for certiorari that the chief had not thought worth our attention—it was apparent that he always took a second look at them. By the time the conference arrived, he was prepared to explain his vote to deny, or to acknowledge that there were valid reasons for considering a grant. He also welcomed more discussion of the merits of the argued cases than his predecessor—including expansions of the reasoning behind his own votes—but he maintained the appropriate impartiality in giving each of us an opportunity to speak. In sum, he is a better presiding officer than both of his immediate predecessors.