Chief Justice John G. Roberts Jr., in an appearance Tuesday at Rice University, defended the record of the U.S. Supreme Court amid a view by many Americans that the judiciary has relinquished some of its independence to an executive branch determined to consolidate power.
Roberts was joined by U.S. District Judge Lee H. Rosenthal in a Q&A session at the Baker Institute for Public Policy. Rosenthal is senior judge of the U.S. District Court for the Southern District of Texas.
The interview was available for viewing in person and via livestream.
Between discussions of history and Roberts’ past experiences as a law clerk and private practice lawyer who often argued before the court, Rosenthal gently prodded Roberts to discuss the current political climate that has included threats against federal jurists.
“A lot of what we do is of necessity controversial. And as I said, some of the criticism is very healthy. Some of it’s not,” said Roberts.
A common misperception, he said, is that the court has overruled more decisions from lower courts than did prior courts. The chief justice cited statistics that the Warren Court, Burger Court and Rehnquist Court all overruled a higher percentage of cases than the Roberts Court, which he put at under 2 percent.
“You hear about the cases that people don’t like for one reason or another that are very controversial. And they have certainly the right and privilege,” he said.
Noting that nine members were appointed by five different presidents, he said the court is diverse.
“And the other thing — the notion that we carry forward the views of the people that appointed us is absurd. President George W. Bush appointed me 20 years ago. The idea that I’m carrying out his agenda somehow is absurd.”
“I’ll always be grateful for President Bush for appointing me, and I’m sure all my colleagues are grateful there. But the idea that I’m carrying out and that they are carrying out some different agendas, I think is really fallacious,” he added.
Rosenthal asked Roberts about against growing threats against judges.
“The problem sometimes is that the criticism can move from a focus on legal analysis to personalities,” Roberts said, adding that the criticism comes “from all over.”
“I mean, not just any one political perspective on it, that it’s more directed in a personal way and that, frankly, can be actually quite dangerous,” he said. “Judges around the country work very hard to get it right, and if they don’t their opinions are subject to criticism, but personally directed hostility is dangerous and it’s got to stop.”
Rosenthal thanked Roberts for speaking out against threats that are “very much part of our lives these days.”
“And on behalf of trial judges everywhere, I want to personally thank you because while we know that you may not always agree with us, we always know that you have our backs, and that means a great deal,” she said. “Thank you. And I hope it continues. I know it will.”
Roberts recounted the emotionally draining days in 2005 preparing for hearings on his nomination to replace Justice Sandra Day O’Connor when Chief Justice William Rehnquist died and Bush changed course to nominate Roberts for chief justice. Roberts had worked as a law clerk for Rehnquist, then an associate justice.
The day after his nomination for chief justice was announced, “I’m helping carry Chief Justice Rehnquist’s casket up to lie in repose at the court,” he said.
With hearings set to begin the following week, there was little time to prepare, but Roberts was confirmed, famously saying during the Senate hearings that he viewed his role as an umpire calling balls and strikes.
When Roberts joined the court, he took time to study portraits in two conference rooms of the 16 men who had served as chief. He reviewed criticisms each had faced during their tenures, including some he knew little about.
Roberts also discussed changes to oral argument made during the Covid pandemic that have led to time for justices to ask more questions.
“We need to do a better job of putting a time limit on that because what’s happened is that the time for argument has ballooned, often to sort of like two hours instead of the usual one hour,” he said. “So, we’re doing a little too much now.”
Asked for his message to Americans as the country celebrates the 250th anniversary of the signing of the Declaration of Independence, Roberts focused on the need for courage.
He cited the example of John Jay, who served as the nation’s first chief justice. Asked by President George Washington for legal advice on retaining American neutrality during fighting between France and England, he said Jay demurred.
“I mean Washington was a god. And Jay just said, I’m not going to tell you because I’m now the head of another branch of government and I’m deciding cases. I’m not your attorney general. I’m not your lawyer. And that was an incredible act of courage,” Roberts said.
The event marked the second time that the chief justice had visited Rice. He spoke 13 years ago as part of Rice’s centennial celebration, said Baker Institute director David M. Satterfield.
“Even today, alumni will approach us about that event as one of the defining intellectual moments of their time at Rice,” said Satterfield.
Asked by Rosenthal why he chose Rice among 4,000 institutions of higher education for a rare return appearance, Roberts said it was because of the influence of James Baker, his boss 45 years ago in the Reagan White House.
“I got a letter from Secretary Baker a few months ago inviting me to come here, and he ended by saying, ‘I look forward to your favorable response.’ It really did, and I was still used to saying yes. So, I said yes and [am] happy to be here again.”