Heckling the Umpire: John Roberts, Public Scrutiny, and the Court's Legitimacy
Author | William Spruance |
Position | Georgetown University Law Center, J.D. 2022; Vanderbilt University, B.A. 2017 |
Pages | 633-665 |
Heckling the Umpire: John Roberts, Public
Scrutiny, and the Court’s Legitimacy
WILLIAM SPRUANCE*
ABSTRACT
Chief Justice Roberts’ fifteen years at the helm of the Supreme Court have
featured significant changes to the political landscape. He has served under
four presidents and with twelve different associate justices through a rapidly
changing media environment. During his confirmation hearing, Roberts
stated, “Judges are like umpires. Umpires don’t make the rules, they apply
them. The role of an umpire and a judge is critical. They make sure every-
body plays by the rules, but it is a limited role. Nobody ever went to a ball
game to see the umpire.” Roberts’ analogy emphasized a reserved role for
the judiciary, but politicians and the public do not hesitate to criticize the
Supreme Court.
As Chief Justice, Roberts maintains dual objectives: to advance his preferred
method of jurisprudence and to mitigate potential damage to the Court’s repu-
tation. I seek to explore to what extent these objectives are aligned and how fac-
tors outside the Courtroom might influence Roberts’ decision-making. To do
this, I present areas of law in which Roberts’ opinions have been consistent,
cases that have served as anomalies to his jurisprudence, and analysis of the
public scrutiny surrounding each case and controversy.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634
I. PRIORITIZING CONSERVATIVE LEGAL LEGITIMACY . . . . . . . . . . . . . 638
A. Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 638
B. Campaign Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 642
C. Obergefell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 646
II. PRIORITIZING SOCIOLOGICAL LEGITIMACY . . . . . . . . . . . . . . . . . . . 647
A. Health Care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648
B. Stare Decisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655
* Georgetown University Law Center, J.D. 2022; Vanderbilt University, B.A. 2017. © 2021,
William Spruance.
633
III. THE COSTS OF ADDRESSING PUBLIC PERCEPTION . . . . . . . . . . . . . . 660
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 663
INTRODUCTION
Chief Justice John Roberts approaches the Supreme Court with dual objec-
tives: conservative jurisprudence and the appearance of a non-partisan Court.
During his tenure, Roberts has sought to balance these competing approaches
through concern for the sociological legitimacy of the Court and the legal legiti-
macy of his jurisprudence.
On one hand, Roberts is a conservative jurist. While other Republican appoint-
ees like Justices Stevens and Souter became reliable members of the liberal wing
of the Court, the same cannot be said of Roberts. In the 2018 Supreme Court
term, his vote aligned with Justice Kavanaugh’s in 79.7% of cases and Justice
Alito’s in 77.8% of cases. In contrast, his vote aligned with Justice Ginsburg’s in
54.2% of cases and Justice Sotomayor’s in 55.6% of cases.
1
He has described a
reserved role for the judiciary, famously comparing the proper role of a judge to
that of an “umpire” and explaining that it is his “job to call balls and strikes, and
not to pitch or bat.”
2
He has sided with the conservative bloc in a number of
highly publicized 5–4 decisions, including cases on voting rights,
3
gun rights,
4
re-
ligious freedoms,
5
abortion regulations,
6
gay marriage,
7
and campaign finance
law.
8
At the same time, judicial preferences do not play out in a vacuum. Roberts
abhors the perception of the Court as a political branch, and the advancement of
his preferred jurisprudence relies on the other government branches’ respect for
the Court’s institutional legitimacy. Roberts repeatedly denies partisanship in the
Supreme Court, telling an audience in 2016, “We don’t work as Democrats or
Republicans.”
9
He expanded on that theme two years later following President
Trump’s use of the term “Obama judge;” Roberts responded, “We do not have
Obama judges or Trump judges, Bush judges or Clinton judges. What we have is
an extraordinary group of dedicated judges doing their level best to do equal right
1. The Statistics, 133 HARV. L. REV. 412, 412 (2019).
2. Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the
United States Before the Senate Comm. on the Judiciary, 109th Cong. 55–56 (2005) [hereinafter
Confirmation Hearing] (statement of John G. Roberts, Jr., Nominee to be C.J. of the United States).
3. See, e.g., Shelby Cty. v. Holder, 570 U.S. 529, 541 (2013).
4. See, e.g., D.C. v. Heller, 554 U.S. 570, 570 (2008).
5. See, e.g., Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2249 (2020).
6. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 130 (2007).
7. See, e.g., Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, C.J., dissenting).
8. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 310 (2010).
9. Adam Liptak, John Roberts, Leader of Supreme Court’s Conservative Majority, Fights
Perception That It Is Partisan, N.Y. TIMES (Dec. 23, 2018), https://www.nytimes.com/2018/12/23/us/
politics/chief-justice-john-roberts-supreme-court.html [https://perma.cc/UM7Q-432K].
634 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:633
to those appearing before them.” He continued, “The independent judiciary is
something we should all be thankful for.”
10
In this piece, I seek to prove that
Roberts faces conflicting concerns between following his judicial philosophy and
protecting the court from public allegations of politicization.
Roberts’ conservative jurisprudence and concern for the Court’s legitimacy
can present a conflict in divisive cases; he may decide such cases as he believes is
correct or attempt to mitigate public scrutiny to preserve the Court’s nonpartisan
image in the eyes of the public. Both choices have serious potential costs. If he
opts to promote his conservative jurisprudence, he may face partisan reactions to
the Court from the left. Recent calls for overhauling the current structure of the
Court from national columnists,
11
legal scholars,
12
presidential candidates,
13
and
senators
14
confirm that this concern is well-founded. Further, joining his fellow
Republican-appointed members in decisions along partisan-appointment lines
can amplify the perception that the Court is a political force. However, deciding
cases based on potential public reaction can undermine the Court’s legitimacy as
well and lead to institutional criticism from the political right.
15
This practice
may also incentivize the use of the “heckler’s veto,” with protestors seeking to
exploit Robert’s concerns with heightened protests, threats, and politicized rheto-
ric aimed at the Court.
16
Harvard Law Professor Richard Fallon defines “sociological legitimacy” as an
external concern for how the public views the legal system and its institutions.
17
10. Mark Sherman, Roberts, Trump spar in extraordinary scrap over judges, ASSOCIATED PRESS
(Nov. 21, 2018), https://apnews.com/article/c4b34f9639e141069c08cf1e3deb6b84 [https://perma.cc/
AU6J-C6QF].
11. See, e.g., Joe Scarborough, Opinion, There’s nothing more originalist than packing the court,
WASH. POST (Oct. 15, 2020), https://www.washingtonpost.com/opinions/2020/10/15/court-packing-is-
originalist/ [https://perma.cc/648P-SYK5]; Aaron Belkin & Kate Kendell, Expand the US Supreme
Court to Save Democracy, S.F. CHRON. (Sep. 8, 2019), https://www.sfchronicle.com/opinion/article/
Expand-the-US-Supreme-Court-to-save-democracy-14418147.php [https://perma.cc/43G3-74FQ].
12. See, e.g., Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J. 148,
148 (2019).
13. See, e.g., Josh Lederman, Inside Pete Buttigieg’s plan to overhaul the Supreme Court, NBC
NEWS (June 3, 2019), https://www.nbcnews.com/politics/2020-election/inside-pete-buttigieg-s-plan-
overhaul-supreme-court-n1012491 [https://perma.cc/5UAQ-C8ZM].
14. See, e.g., Ed Markey (@EdMarkey), TWITTER (Sept. 18, 2020, 9:00 PM), https://twitter.com/
EdMarkey/status/1307122232850870274; GOP War Room, Sen Hirono Insists Court Packing “Long
Overdue,” To Be Discussed “If The Dems Take Back The Senate,” YOUTUBE (Sept. 22, 2020), https://
www.youtube.com/watch?v=-RJCyvbpFMU [https://perma.cc/NE65-QQS5].
15. See, e.g., RANDY BARNETT, OUR REPUBLICAN CONSTITUTION 101-02 (2019); Charles
Krauthammer, Opinion, Why Roberts did it, WASH. POST (June 28, 2012), https://www.washingtonpost.
com/opinions/charles-krauthammer-why-roberts-did-it/2012/06/28/gJQA4X0g9V_story.html [https://
perma.cc/T8N9-HB6U]; Ted Cruz, (@SenTedCruz), TWITTER (June 29, 2020, 2:39PM), https://twitter.
com/SenTedCruz/status/1277673169315344391 [https://perma.cc/8KDN-YMBS].
16. Cass R. Sunstein, If People Would Be Outraged by Their Rulings, Should Judges Care?, 60
STAN. L. REV. 155, 176 (2007).
17. RICHARD H. FALLON JR., LAW AND LEGITIMACY IN THE SUPREME COURT 21 (2018).
2021] ROBERTS, PUBLIC SCRUTINY, AND COURT LEGITIMACY 635
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