Jeffrey Rosen has an article in this month’s Atlantic in which he reports on an interview he conducted with John Roberts last July. The article is largely uncritical and covers many of the same themes Roberts emphasized in his confirmation hearings: the importance of judicial modesty, the value of narrow rulings, and Roberts’ asserted lack of an overarching agenda. But there were a couple aspects of the interview I found noteworthy.
First, I was surprised that Roberts was so candid about his desire for unanimity on the Court and his frustration with justices who care more about their own records than about the credibility of the court. Though he didn’t identify anyone by name, Roberts did criticize justices who act like law professors and seem "concerned with the jurisprudence of the individual rather than working toward a jurisprudence of the Court.” The reference to law professors might be read as a swipe at Justices Scalia, Ginsburg, and Breyer, who were all academics before joining the Court (though to be fair, Breyer, in spite of his professorial demeanor on the bench, is much more driven by pragmatism than theory). And the reference to “the jurisprudence of the individual” seems clearly directed at Justice Thomas, who more than any other member of the Court has charted his own path. Is it wise to publicly rebuke the very justices one is hoping to pacify? I’m not sure. It’s possible that Roberts' candidness will backfire and provoke some justices to dig in their heels further.
Second, I was struck by how formalist Roberts sounded. He complained about the “personalization of judicial politics” and appeared nostalgic for an era in which judicial decisions were accepted as the true, impartial statement of the law. Now, it is possible that Roberts does not really believe in this kind of objectivity, but simply views it as a goal to which the Court should aspire. Even many non-formalists agree on this point. Still, his tone seemed quite different from that of Chief Justice Rehnquist, who never pretended that the law was anything other than what the Court said it was. (See his opinions on retroactivity.) In that sense, Rehnquist was a true representative of his generation, which had been educated by the Legal Realists. Most of us are still Legal Realists, of course, but in recent years some academics have been advocating a return to formalism. And if Roberts’ interview is any indication, they may now have a representative on the Court.