Reactions to Chief Justice John G. Roberts, Jr.’s opinion for the Supreme Court, which upheld major provisions of the Affordable Care Act, divided along a predictable political fault line. Liberals applauded it; conservatives denounced it. Beyond the immediate result, however, Roberts’s opinion raises an intriguing, and potentially historic, question: In abandoning the hard-driving conservative wing of the court, has Roberts finally become the chief justice of the United States in both title and spirit?
The chief justice, after all, holds only the most tenuous reins of court leadership. He has only one vote, like the court’s other members, and few additional perks of office—he speaks first in conference, for example, and assigns the majority opinion when he is in the majority.
But for the extraordinary chief justice, even these meager duties afford him the subtle instruments of leadership.
The great chief justices in constitutional history—John Marshall, Charles Evans Hughes, and Earl Warren—have each used these tools to lead, building majorities that transcend partisan lines. Their leadership is dependent on their ability to persuade a majority of colleagues to join them.
Whether Roberts joins their ranks will depend on how effectively he can continue to persuade his colleagues to rise above party politics.
The first great chief justice, John Marshall, by force of his commanding personality and brilliant legal mind, was able to convince his colleagues to join him in even the most controversial decisions. In the famous 1803 case of Marbury v. Madison, Marshall demonstrated that he well understood the tools—and perils—of judicial leadership in a time of intense political partisanship.
The Marshall court, dominated by Federalist party members like the chief justice himself, was asked to decide whether Secretary of State James Madison, appointed by Republican president Thomas Jefferson, had acted illegally. He had refused to deliver to William Marbury, a loyal member of the Federalist party, a judicial commission (an official document appointing him a justice of the peace). Marshall was well aware that a decision ordering Madison to deliver the commission would invite confrontation with the president and the Republican-controlled Congress that the court would not win.
Marshall was up to the challenge. In his opinion, he stressed the legality of the commission, but concluded that the court lacked jurisdiction to decide the case because the congressional statute authorizing it conflicted with the Constitution. His opinion avoided an ill-fated confrontation with the Jeffersonian Republicans. At the same time, using judicial tools to render a politically shrewd judgment, Marshall claimed a vast power for the court to declare an act of Congress unconstitutional.
More than 100 years later, Charles Evans Hughes, whom Roberts is known to admire, offered a blueprint for successful judicial leadership in a series of lectures on the court made shortly before his appointment. In them, he said the chief justice must be respected for his knowledge of the law and his ability to persuade his colleagues of his constitutional position. But just as important, Hughes suggested, a great chief justice must be able to project an institutional image of non-partisanship. Otherwise, the court will be perceived as just another political branch of the federal government and, as a consequence, lose both its prestige and power.
When Hughes was appointed chief justice by President Herbert Hoover in 1930, he inherited a court sharply divided between four ideological conservatives, known as “the four horsemen,” and three liberals, led by Justice Louis Brandeis. Hughes and his fellow Hoover appointee, Justice Owen Roberts, both considered centrists, provided the pivotal votes for a court majority. Hughes, like Marshall, had a strong personality, knowledge of the law, and the ability to make his legal arguments persuasively. Still, he found it difficult to lead his eight independent brethren.
After the election of Franklin D. Roosevelt to the presidency, the four conservative justices consistently voted to strike down FDR’s legislative initiatives. Hughes, literally the man in the middle, worked strenuously to reconcile the two wings of the court, sometimes writing opinions upholding key New Deal statutes and at other times striking them down. And when Roosevelt announced his court-packing plan in 1937, proposing to add a justice for every sitting member over 70 years old, Hughes vigorously defended the court. Writing a seven-page letter to the Senate judiciary committee, he systematically destroyed the president’s claim that aging justices were overworked and behind schedule. After the defeat of his court-packing plan, Roosevelt grudgingly admitted that the chief justice was “the best politician in the country.”
After Marshall and Hughes, the next chief justice generally acknowledged by scholars to deserve the mantle of greatness is Earl Warren. After he was appointed in 1953 by President Dwight D. Eisenhower, Warren faced a divided court deliberating on one of the most momentous decisions in constitutional history. Brown v. Board of Education had first been argued before Warren’s predecessor, Chief Justice Fred Vinson, and a majority of the justices from that court favored striking down segregation in public schools.
Still, several justices were prepared to dissent. Warren, after presiding over the second argument, quickly exhibited the consummate political skills that had made him an enormously popular governor of California, building coalitions across party lines. The new chief justice achieved consensus among the previously divided members, writing a unanimous opinion for the court declaring that segregation in public schools was unconstitutional.
When John Roberts was appointed chief justice, no one doubted his superior intellect and extraordinary skills as a lawyer. But until his majority opinion upholding major provisions of the Affordable Care Act last month, he had aligned himself consistently with the court’s most conservative members on polarizing political issues.
In writing the court’s ACA opinion, Roberts, for the first time, breached the partisan divide. In doing so, he may have begun to heed Hughes’s advice to project an institutional image of non-partisanship. If he continues to lead the court in that spirit, he may well build his own legacy of greatness.
James F. Simon, dean emeritus at New York Law School, is the author of FDR and Chief Justice Hughes: the President, the Supreme Court, and the Epic Battle Over the New Deal, published by Simon and Schuster.
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