Leader of the Supreme Court, Leader of the Federal Courts | Chapter 11
All of the previous snapshots in our yearlong look at John Roberts’s first decade as Chief Justice have focused on substantive areas of the law and how the Chief Justice’s views and votes have shaped those areas. But the Chief Justice’s ability to shape the law and the courts is not limited to the votes he casts or the opinions that he writes. Rather, as we discussed in the opening snapshot, the “first among equals” appellation often applied to the Chief Justice “understates the potential significance of the Chief Justice’s role—both as a leader of the Court and leader of the federal judiciary.” Indeed, although the power inherent in these responsibilities is significant, these responsibilities are often overlooked in discussions of the Court and the Chief Justice. In this snapshot, we look at those aspects of the Chief Justice’s role—and how John Roberts has fulfilled those significant responsibilities in his first decade as Chief Justice of the United States.
We first look at the Chief Justice as a leader of the Court, and we focus in particular on three aspects of that leadership. First, when he was nominated to be Chief Justice, Roberts made clear that bringing greater consensus to the Court’s decisions would be a priority. In his first decade on the Court, however, there’s been little progress in this regard. To be sure, there have been a slightly higher percentage of unanimous decisions under John Roberts than there were under his predecessor, William Rehnquist (continuing a trend that predated Roberts’s accession to the high court), but the increase has only been modest. And the percentage of 5-4 decisions under Roberts has been greater than under either of his predecessors, underscoring that this Court, at least through Roberts’s first decade as Chief Justice, is hardly one marked by consensus.
Second, we turn to one of the most important and longstanding debates about administration of the Supreme Court, that is, the existence of transparency (or lack thereof) at the Court. Most often, this debate focuses on the Justices’ refusal to allow cameras in the courtroom. During his confirmation hearing, Roberts suggested he was at least open to the idea of bringing greater transparency to the Court, claiming that he had no “set view” on cameras and would want to “listen” to his colleagues. But, in Roberts’s first decade on the Court, it has become clear that there are unlikely to be cameras in the courtroom any time in the near future, although there have been modest improvements in other areas. For example, the Court now releases audio of oral arguments more quickly than it used to, and the Court has announced that it will soon make all filings with the Court available on its webpage. These improvements are important steps toward greater transparency, but much more remains to be done.
Third, we look at one of the most significant trends at the Court over the last several decades, that is, the decline in the Court’s workload—its “shrinking docket,” as one law review article puts it. Although Roberts observed at his confirmation hearing that the Court could probably be reviewing more cases, the “shrinking docket” has only shrunk further during Roberts’s first decade on the high court.
After examining the Chief Justice as leader of the Supreme Court, we look at the Chief Justice as a leader of the federal judiciary. One of the most important of the Chief Justice’s responsibilities is the appointment of members of specialized courts, such as the Foreign Intelligence Surveillance Court, and committees of the Judicial Conference. When it comes to these appointments, Chief Justice Roberts has, at least in some contexts, named to these positions significantly more judges appointed by Republican presidents than Democratic presidents, thus potentially undermining his professed goal of ensuring that the judiciary is viewed as nonpartisan. It is worth noting, however, that there may have been some modest improvement on this score in recent years, and we looked only at a limited universe of Roberts’s Judicial Conference appointments.
We also look at the Chief Justice’s annual reports on the judiciary. Here, Chief Justice Roberts deserves some credit. Unlike his predecessors who sometimes used these reports to advance their own ideological agenda for the courts, Roberts has largely used them to advance the interests of the federal judiciary as a whole, most often drawing attention to the need for raises for federal judges and sufficient appropriations for the federal judiciary to fulfill its responsibilities, and also highlighting the need for judicial vacancies to be filled.
Overall, then, Chief Justice Roberts’s record as the head of the Supreme Court and the federal courts has been mixed. He has certainly not achieved all that he set out to achieve, but he has achieved some. And while he has not been quite as impartial a leader of the federal courts as one might have hoped based on his stated views about the role of the courts, he has not been (in at least one key respect) as bad as his immediate predecessors.