After the health care ruling, Roberts jokes, but declines to talk about the decision
A day after issuing his controversial opinion upholding President Obama’s landmark health care law, Chief Justice John G. Roberts Jr. jokingly deflected questions about his historic ruling. At one point, he even said he was going to spend a few weeks teaching a course in the nation of Malta, which he described as an “impregnable island fortress.”
Roberts was alluding to escaping criticism from conservatives upset that he sanctioned a law they abhor. But if the chief justice felt any anxiety about authoring the decision, he didn’t show it during a long-scheduled discussion at a judicial conference hosted by the D.C. Circuit.
The soft-spoken Roberts, wearing a dark suit and bold red tie, not only skirted questions about his controversial and historic ruling, but he issued a series of quips about everything from his predecessors to rules he would like to change, such as this one: “The odd historical quirk that the chief justice only gets one vote.”
Though he joked about visiting Malta, the 57-year-old Republican appointee might as well have been at one on Friday. The judicial conference was held at the secluded Nemacolin Woodlands Resort in Farmington, Pa., a four-hour drive from Washington. And it was clear he was among friends – he once served on the circuit’s appeals court and is the justice assigned to hear requests for stays and some other matters that emerge from the circuit’s courts. He was also a long-time member of the Washington legal establishment, which comprised a majority of the conference’s participants.
Earlier on Thursday, shortly after the opinion became public, conservative lawyers and judges could be spotted moping about the resort, questioning how one of their most reliable votes on the court could write the 5-4 opinion upholding a statute that had been savaged by Republican politicians.
But within a few hours, those same conservatives treated Roberts with deference when he was whisked into the resort’s large room to attend the conference’s formal dinner. Conservative friends shook his hand and patted him on the back. Fred Fielding, a former White House counsel in Republican administrations, put his arm around the chief justice and whispered into his ear for a few minutes.
When Roberts was introduced at the dinner’s conclusion, he received an enthusiastic standing ovation. Liberals in the audience said they applauded fiercely to thank Roberts for saving the health care law. Conservative lawyers clapped, they said, because they respected the way he reached his opinion, even if they didn’t like the outcome.
“When I first saw that it was a 5-4 decision and the chief justice was the deciding vote, I wondered, ‘How did this happen?’” said John O’Quinn, a Justice Department lawyer during the Bush Administration and now a partner in the firm of Kirkland & Ellis. “Then I read the opinion and the reasoning behind it and realized it was filled with thoughtful reasoning… People can respect the man whether they agree with the opinion or not. That is enough reason to give an ovation.”
Said Chief U.S. District Judge Royce C. Lamberth, a Republican appointee: “There is a feeling that people are happy to see the judiciary does not appear to be partisan. After all of the partisan bickering going on, the court’s opinion was based on legal principals … There is a general feeling of relief that partisanship doesn’t have anything to do with how the court ruled.”
Roberts was joined in his decision by the court’s four liberal justices – Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. His ruling kept in place a major overhaul of the health care system that is expected to extend coverage to 30 million people. It creates state-run insurance exchanges and eliminates what had been some of the most unpopular insurance practices. Roberts’ decision upheld the law’s most unpopular provisions, the individual mandate, which requires people to obtain insurance or face a financial penalty for not doing so. Roberts reasoned that such a penalty was a tax and, thus, permissible.
As he left the dinner just after 10 p.m. Thursday to head to his room, Roberts shook more hands and exchanged pleasantries with friends. On Friday morning, Roberts was again relaxed when he arrived to partake in a “Conversation with the Chief Justice of the United States” that had been scheduled long before anyone knew he would be issuing Thursday’s historic ruling.
Lamberth and David B. Sentelle, chief judge of the circuit’s appeals court, moderated the discussion and mostly stuck to softball questions and didn’t press the chief justice to further explain his answers. And the chief justice was happy to oblige – sticking to the business of the court and its history, while always seeming to deliver the perfect quip or funny anecdote to make a point or dodge a query.
The closest the session got to the health care ruling came when Lamberth asked Roberts if it ever bothered the chief justice that he “can’t respond to criticism.” “No,” Roberts replied, and then pivoted in his comfortable leather chair to face Sentelle for the next question. The answer provoked widespread laughter in large conference room.
In response to other questions about the court’s work, Roberts described his duty to parcel out opinions to each justice in a way that ensured they all received a variety of cases. “It’s fun. I get a little graph and try to work it out,” Roberts said, telling the audience about how he once assigned an opinion and later realized the justice was actually voting “the other way.” “I went and asked him if he could change,” Roberts joked.
When asked what he found to be the biggest surprise since joining the court, Roberts replied that he was shocked that so many foreign delegations stopped by to visit. “These are people who are really putting things on the line. They risk going to jail themselves and even subtler pressures,” Roberts said, launching into a story about how a female justice had told him that every time she rules against the government her brother loses government contracts. “We try to provide some moral support to let them know we’re behind them,” Roberts said.
He described his practice of front-loading oral arguments early in the court’s term to allow justices more time to write opinions and whether the court would allow C-Span to broadcast arguments (unlikely). He said about 20 percent of his work was on administrative matters. “I wasn’t picked for the job because I had great management or administrative abilities,” Roberts said.
He joked that he had studied history in college but didn’t know much about some former chief justices, a gap he has worked to rectify. “I think if any senators wanted to embarrass me during my confirmation hearings they would have asked me to name them,” Roberts said.
He said that he thought the justices’ aggressive questioning of lawyers was a good thing, noting that the justices had already carefully studied legal briefs before oral arguments. “We are not going in there to hear a lawyer give a spiel about what case is all about,” he said.
However, he said, the questioning has “gotten a little too active.”
“We haven’t really given the lawyers much of a chance to answer questions,” he said. “It is not unusual for one of the justices to ask a question before a lawyer can really get out an answer.”
Roberts explained that he was working hard to ease budget cuts, saying with a grin that the lawmakers “who are responsible for our budget do a great job. The ones who give us money are among the best legislators since Henry Clay and Daniel Webster. And you can quote me on that.”
When U.S. District Judge Richard W. Roberts asked a question about a recent Washington Post opinion piece that urged the country to boost the number of Supreme Court justices from nine to 19, Roberts dismissed the idea. But he couldn’t seem to resist another one-liner: “Well, I suppose it depends on who gets to pick them.”
Though he dodged a question from a reporter about the legacy of the health care ruling, Roberts turned serious and spoke in broader terms about how he hopes historians will judge the court during his tenure. “I would like people looking back to say we did our job according to the Constitution and to preserving equal justice under law. I don’t think there is any better legacy you could ask for.”
Soon thereafter, Sentelle announced that the session was over and Roberts stepped from the stage and left the room, again to applause. “Elvis has left the building,” Sentelle said.