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).

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