Take a hint, John Roberts — it’s time for you to retire too


“Judges are like referees,” said John Roberts. Said famously At his confirmation hearing as presiding judge. “The umpire doesn’t create the rule, it applies the rule … to make sure everyone enforces the rule, but it’s a limited role. I’ve never been to a ball game to see the referee. “

The analogy is vivid and folk, and is even more violently in conflict with today’s reality than it was when Roberts called it in 2005.

One way to hear Roberts’ pious words is a gesture of respect. He knows that the truth is more complicated. But he explains the ideal that those with the right ideas should be theoretically respected, and judges and judges should at least try to make an approximation in practice.

Another way to hear the words is as a gesture of contempt. Roberts invites the audience to participate in cynical mythology practice. It is an isolated, non-political one that isolates the fraudulent mysteries of the High Court when everyone can see from the surface of a narrowly determined case that the judge is completely immersed in the issue of politics and power. Designed to be saved as.

The first interpretation is more impartial to Roberts, who has a term as chief judge who bravely tried to protect the reputation and independence of the court.

But there is one surefire way to prove that Roberts deserves the benefits of suspicion. He was able to join Judge Stephen Breyer to announce his retirement at the end of this summer’s court term.

This amazing act is what the Supreme Court wants, the restoration of public belief in the institutional legitimacy of the court, and the ruling’s personal agenda of individual judges or the party’s tactics in which they are placed. It is most likely to advance the flow from something other than. At their job.

Unlike Breyer, speculation that Roberts’ retirement is imminent is not swirling, and there is no public pressure campaign aimed at giving in to the intentions of the party that originally inaugurated Roberts. There is no reason to think Roberts is interested in career counseling from columnists.

Still, Roberts’ own words suggest a strong logic for the Supreme Court justice, who imposes a term limit on himself. If he believes the judge is like a referee, his own retirement is the best example and a rebuke for the obvious counterexamples around him. His fellow judges clearly do not believe they are independent law arbitrators. That’s why they want to time their retirement (as Breyer did) or delay their death (as Ruth Bader Ginsburg couldn’t achieve), and their successors are the right politics. Allows you to be elected by the persuasive president.

Best of all, Roberts knows that Senate minority leader Mitch McConnell does not remotely believe that the High Court is non-political. He probably deserves praise for having the courage of belief in his principles of power: he’s already the Republican majority in the Senate in this fall election.

As Roberts certainly recognizes, what McConnell is thinking about in the future is, in itself, a form of court packing, as he has already done in the past. It’s virtually no different than if the Democrats used the majority to scale up the courts and set up some sympathetic candidates. There are already two judges in court, Neil Gorsuch and Amy Coney Barrett. These judges exist primarily because of McConnell’s willingness to go against precedent. ..

Roberts preaches the dignity of law and the strict separation of justice, saying that the fate of constitutional issues important to skeptics is controlled by a random twist of fate and intentional political gamemanship. Believing is perfectly rational. Believing in opposition is becoming more and more unreasonable.

For this reason, Roberts has at least three reasons to consider wearing a robe this year, each blending ideal and practical considerations.

  • First, the presiding judge can probably trust Biden more than his followers. Despite their presumptive differences in judicial philosophy, Roberts said he and Biden could be either McConnell or a Republican candidate for 2024 (as of today, either Trump or someone sharing Trump). You must be aware that you are more committed to the cause of the institutional legitimacy of the court than (high). Despise institutional independence).

  • Second, he was able to make eloquent statements on behalf of orderly institutional governance. Perhaps at the age of 67, Roberts thinks: Hey, I could easily stay in this job for another 20 years — until I was really debilitated or died. It’s certainly a normal practice in court, as geriatrics classes are becoming more and more common in parliament to stick to power. But that is not normal in the most important areas of American life. CEOs, university presidents, and editors in their late 60s who have been in office for 17 years are either thinking about resigning or are forced to think about it by the responsible board. Already, Roberts has fulfilled almost the length recommended by many candidates for reformers due to the Supreme Court’s term limit (18 years at a time). Recent suggestions). Just because the Constitution allows judges to stay in their jobs until old age does not mean that they should make that choice. This trend also contributes to cult of personality, such as those accumulated on the left side around Ginsburg and the right side around Antonin Scalia, which is in complete conflict with Roberts’ concept of self-disciplined, self-respecting law judgment. doing.

  • Third, Roberts’ explicit self-concept as a non-political advocate of law and its supreme institution is becoming much more difficult in a potentially unacceptable way. Increasingly, Roberts doesn’t seem to be interested in calling the ball and strike just like a referee. Instead, he, of course, seems to see himself like a baseball commissioner trying to protect the sport itself during times of crisis. This was a broad interpretation of what Roberts did during the Obama era. He seemed to shift some of his own views in favor of affordable care laws and to avoid the eruption of controversy. If a conservative majority overthrew it, it would have continued. Many are wondering if this same instinct will be exerted when this year’s court revisits the constitutional right to abortion granted in 1973. Roe v. Wade case. The presiding judge’s exquisite manipulation is reminiscent of a juggler desperately trying to prevent the plate from hitting the floor, or a Dutch boy who put his finger on the embankment. It’s all very commendable, but it’s still incompatible with the idea that judges are simply interpreting the law, regardless of politics.

Perhaps Roberts has such a clever finger that he can really save the embankment and reverse the flow of idealistic forces threatening to attack the High Court. In that case, let him continue working for another 17 years and fully acquire the status of cult of personality that he says he does not want. Until then, however, people have the right to look during John Roberts’ preaching on the purity of the judiciary.