June 19, 2006 – Page 1674
Babe Ruth had a famous reply in 1931 when asked to explain how he could justify being paid $5,000 more than President Herbert Hoover: “I had a better year than he did.”
By that standard, John G. Roberts Jr. deserves to double his annual salary of $212,100 as the chief justice of the United States — because he’s certainly had a better year than the $400,000-a-year president of the United States who appointed him.
Mincberg reserves judgments on the court’s ideological direction, but conservatives and disinterested court watchers sing Roberts’ praises with no qualifications. “He has a solid A,” says Douglas Kmiec, a conservative constitutional law expert at Pepperdine Law School.
Tellingly, Roberts is drawing kudos for modesty and judicial restraint — the ideals he stressed in his remarks during the Judiciary Committee’s confirmation hearing last September. Far from sharpening the court’s ideological divisions, as many conservative interest groups were hoping, Roberts has steered the court toward narrower decisions and a surprisingly high percentage of unanimous opinions.
In that sense, Roberts represents the antithesis of Bush’s repeated promises to pick justices for the Supreme Court in the mold of hard-line conservatives Antonin Scalia and Clarence Thomas. Roberts has taken conservative stances in most of the court’s closely divided cases. But his opinions, including two lengthy dissents, have none of Scalia’s signature scorn for opposing views. And Roberts shows no inclination to copy Thomas in wanting to reconsider established precedents.
Admittedly, more divisions are likely to emerge during the next two weeks as the court wraps up its final 19 cases for the term before recessing for the summer. For that reason court watchers caution that it’s premature to be grading Roberts. That’s all the more true because — as the youngest chief justice in 200 years — Roberts’ tenure will be measured not in months or years, but in decades.
It’s even earlier to start evaluating Bush’s other appointee, Samuel A. Alito Jr., who took the bench in February. His first two opinions were unanimous decisions favoring criminal defendants written in workmanlike fashion. But in one, he made a passing reference to legislative history that prompted Scalia to repeat his unbending opposition to any consideration of legislative debate to help resolve issues of statutory construction. Roberts joined Alito’s opinion — thus underscoring that Scalia is all alone in that view.
From all appearances, Roberts has quickly won the confidence of his eight colleagues, all but one of whom came to the Supreme Court with more judicial experience than Roberts’ two years on the D.C. Circuit Court of Appeals. Justice Stephen G. Breyer has publicly complimented Roberts for allowing more debate in the justices’ private conferences. At the same time, George Washington University law professor Orin Kerr suggests that Roberts appears to be persuading the other justices to follow him in his publicly announced preference for unanimity whenever possible.
Both on and off the bench, Roberts has shown a friendly, down-to-earth style without any of the self-importance that his predecessor, William H. Rehnquist, occasionally displayed by dressing down stumbling attorneys during arguments and adding those famous gold stripes to his judicial robes. “He does a very good job of self-deprecating humor,” Mincberg notes. As reported by Bloomberg News, Roberts even uses Washington’s subway system.
With such high praise for his performance so far, the question naturally arises whether any of Roberts’ past opponents are having second thoughts. Mincberg says no. He notes that Roberts and Alito helped form the 5-4 majority in the court’s May 30 decision narrowing free-speech protections for public employees. And he worries that along with Scalia and Thomas, the four will continue to form a solid conservative bloc on a range of civil liberties issues. That puts all the more focus on Justice Anthony M. Kennedy, who continues to disappoint conservatives on some issues — such as his two June 12 opinions favoring challenges by death row inmates.
The court has already teed up some high-profile issues for the term that begins in October, including abortion and racial diversity in public schools. But Roberts deftly defused some tough issues early in this term. Maybe his luck will hold.
In any event, for now Roberts’ many admirers might be forgiven for thinking of him instead of Bush the next time they hear the Marine band strike up “Hail to the Chief.”
Kenneth Jost is the Supreme Court editor for CQ Press.






