Take The Hint, John Roberts — It’s Time For You To Retire, Too
John F. Harris – February 3, 2022
“Judges are like umpires,” John Roberts famously said at his confirmation hearing as Chief Justice. “Umpires don’t make the rules, they apply them … They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.”
The analogy is vivid and folksy — and even more starkly at odds with reality today than when Roberts invoked it back in 2005.
One way to hear Roberts’ pious words is as a gesture of respect. He knows the truth is more complicated. But he’s describing an ideal that right-thinking people should honor in theory, and judges and justices should strive at least to approximate in practice.
Another way to hear the words is as a gesture of contempt. Roberts is asking his audience to join him in a cynical exercise of make-believe. It is designed to preserve the fraudulent mystique of the high court as detached and apolitical when anyone can see from a surfeit of narrowly decided cases that justices are fully immersed in questions of politics and power.
The first interpretation is more fair to Roberts, with a tenure as chief justice in which he has valiantly tried to protect the reputation and independence of the court.
There is one sure way, however, that Roberts could prove he deserves the benefit of the doubt: He could join Justice Stephen Breyer in announcing his retirement at the end of the court’s term this summer.
This surprising act would be most likely to advance what the Chief Justice says he wants — a revival of public faith in the Court’s institutional legitimacy, and that its rulings flow from something other than the personal agendas of individual justices or the partisan machinations that placed them in their jobs.
Unlike with Breyer, there is no swirl of speculation that a Roberts retirement is imminent — nor any public pressure campaign designed to make him surrender to the wishes of the party that originally put him in office. There is no reason to suppose that Roberts is interested in career counseling from a columnist.
Still, Roberts’ own words suggest a powerful logic to the chief justice imposing term limits on himself. If he believes justices are like umpires, his own retirement would be the best example — a rebuke to glaring counter-examples all around him. His fellow justices plainly don’t believe they are detached arbiters of law. That is why they try to time their retirements (as Breyer did), or hope for a delay in their deaths (as Ruth Bader Ginsburg failed to achieve) so that their successors can be selected by a president of the right political persuasion.
Most of all, Roberts knows that Senate Minority Leader Mitch McConnell does not remotely believe that the high court is apolitical. He deserves credit, perhaps, for having the courage of his power-over-principle convictions: He has already signaled he is likely to lead his party in blocking any further Supreme Court nominations for the balance of Biden’s term in the plausible event Republicans regain a Senate majority in this fall’s elections.
As Roberts surely recognizes, what McConnell is contemplating in the future — just like what he has done already in the past — is in its own way a form of court-packing. It is no different in effect than it would be if Democrats used their majority to increase the size of the Court in order to install several sympathetic nominees. Already the Court has two justices, Neil Gorsuch and Amy Coney Barrett, who are there principally because of McConnell’s willingness to defy precedent — to tolerate extended vacancies to block nominees he doesn’t like or to race the clock to swiftly advance nominees he does like.
While Roberts sermonizes about the majesty of the law and the austere detachment of the judiciary, it is entirely reasonable for skeptics to believe that the fate of important constitutional questions is controlled by random twists of fate and purposeful political gamesmanship. It is increasingly unreasonable to believe the opposite.
For this reason, there are at least three reasons Roberts might consider hanging up his robes this year, each blending idealistic and practical considerations.
- First, the chief justice can probably trust Biden more than whoever comes after. Despite their presumed differences on judicial philosophy, Roberts must perceive that he and Biden are more committed to the cause of institutional legitimacy for the court than either McConnell or the 2024 Republican nominee (which as of today is mostly likely either Trump or someone who shares Trump’s contempt for institutional independence).
- Second, he could make an eloquent statement on behalf of orderly institutional governance. Perhaps, at age 67, Roberts is thinking: Hey, I could easily stay in this job for another twenty years — until I get really infirm or die. That is indeed normal practice at the Court, just as it is increasingly normal for the geriatric class to cling to power in Congress. But it is not normal in most important fields of American life. Any CEO or university president or editor who is in her or his late sixties and has held office for 17 years would now be thinking about stepping down — or being forced to think about it by a responsible governing board. Already, Roberts has served nearly the length that many would-be reformers recommend for Supreme Court term limits (18 years in one recent proposal). Just because the Constitution allows justices to stay parked in their jobs until deep in old age does not mean it is desirable for them to make that choice. This trend also contributes to cults of personality — such as those that built up on the left around Ginsburg and on the right around Antonin Scalia — that are entirely at odds with Roberts’ notion of self-disciplined, self-effacing umpires of the law.
- Third, Roberts’ apparent self-conception as an apolitical defender of the law and its highest institution is about to get much harder, in potentially untenable ways. Increasingly, Roberts does not seem to be concerned merely with calling balls and strikes in the fashion of an umpire. Instead, he understandably seems to view himself as more like a baseball commissioner trying to protect the sport itself during a time of crisis. This was the widespread interpretation of what Roberts was doing in the Obama years, when he seemed to be shifting some of his own views — widening the strike zone, if you will — in order to uphold the Affordable Care Act and avoid the eruption of controversy that would have followed if a conservative majority had struck it down. Many people are wondering whether this same instinct will be at play as the court this year reexamines the constitutional right to abortion granted in 1973 by Roe v. Wade. The Chief Justice’s exquisite maneuvers call to mind a juggler frantically trying to prevent a plate from crashing to the floor, or the Dutch boy with his finger in the dike. It’s all very admirable — yet also at odds with the notion that justices are simply interpreting the law without regard to politics.
Perhaps Roberts has such deft fingers that he really will manage to save the dike and turn back the tide of ideological forces threatening to swamp the High Court. In that case, let him stay in his job another 17 years and fully earn the cult-of-personality status he says he doesn’t want. Until then, though, people are entitled to roll their eyes during John Roberts’ sermons about the purity of the judicial branch.