An Invisible Chief Justice

By Linda GreenhouseSeptember 9, 2010 9:34 pmSeptember 9, 2010 9:34 pm

Linda Greenhouse on the Supreme Court and the law.

The Pew Research Center asked people this summerto identify the current chief justice of the United Statesfrom among four possibilities: John Roberts, Thurgood Marshall, John Paul Stevens and Harry Reid. Only 28 percent correctly picked Chief Justice Roberts. The late Thurgood Marshall came in second, with 8 percent. Fifty-three percent could not make a selection, answering “don’t know.”

The result was surprising; after all, people weren’t asked to pull a name out of thin air. And the alternatives to the real chief justice were scarcely plausible: Justice Thurgood Marshall died 17 years ago (or maybe people thought the question referred to Chief Justice John Marshall — he died in 1835); Senator Harry Reid has never been a justice at all; and Justice John Paul Stevens was prominently in the news this summer not for being chief justice, but for retiring.

To anyone who spends a few minutes a week thinking about the Supreme Court, Chief Justice John G. Roberts Jr. is far from invisible. Political scientists and legal scholars debate whether the court under his leadership has becomea whole lot more conservative orscarcely more conservative at all. A Roberts court decision earlier this year, the Citizens United campaign-finance ruling, prompted President Obamato criticize the chief justice and his colleagues to their facesin the middle of the State of the Union speech. And an unusually rapid pace of personnel change, with three additional new justices since Chief Justice Roberts took his seat on Sept. 29, 2005, has kept the court and its members under a brighter than usual spotlight. So the chief justice’s low public profile is a bit of a mystery.

Thinking about both the Pew poll result and the approaching fifth anniversary of John Roberts’s first day on the bench brings back memories of the strangely disquieting summer of 2005 that ushered the Roberts court into existence. On the eve of the July 4 weekend that summer, Justice Sandra Day O’Connor surprised nearly everyone by announcing her retirement. Two months later, on the Saturday night of a quiet Labor Day weekend, Chief Justice William H. Rehnquist died at the age of 80. It was hard to call his death unexpected, because he had been seriously ill with thyroid cancer for nearly a year. But just six weeks earlier, to counter rumors of his imminent retirement that had grown so frenzied that news photographers were camped out day and night on his front lawn,the chief justice had issued a statement denying that he planned to step down.

He had privately told Justice O’Connor the same thing. Had she anticipated that the chief justice would not serve out the next Supreme Court term, she told me after his death, she would have delayed her own retirement for a year rather than burden the court with two simultaneous vacancies. An affecting memoir published last year of Chief Justice Rehnquist’s life and death, titled “Rehnquist,” by a close friend, Herman J. Obermayer, recounts how optimistic the chief justice was in midsummer about his chances for recovery, and how he handled the news only weeks before he died that despite radiation and chemotherapy, the tumor had started to grow again.

As another first Monday in October approaches and the history of the Supreme Court takes still another turn with the arrival of Justice Elena Kagan, it’s worth revisiting these events if only as a reminder of how tricky and contingent history can be. Experience shows how easily even the recent past can take on a retrospective aura of inevitability, and the advent of the Roberts court is no exception. It’s easy to forget, for example, that John Roberts was an accidental chief justice.

President George W. Bush first chose him for the O’Connor vacancy. After Chief Justice Rehnquist’s death, with the approach of a new term placing an extra premium on speed, the president switched his fully vetted associate-justice nominee to the new vacancy.

Experience shows how easily even the recent past can take on a retrospective aura of inevitability, and the advent of the Roberts court is no exception.

At 50, John Roberts became the youngest chief justice since John Marshall, in 1801. He had been William Rehnquist’s law clerk during the court’s 1980-81 term. He was a well-known and widely admired member of the Supreme Court bar who had served two years and written 49 opinions as a federal appeals court judge but who, unlike his mentor or other recent chief justices, had never run any institution. Whether he would have otherwise have been an obvious choice for chief justice is a question I don’t have to be able to answer in order to suggest that his trajectory was hardly inevitable.

And had Chief Justice Rehnquist learned of his dire prognosis a month sooner than he did, I think there is at least a fair chance that Sandra Day O’Connor would still be on the court. Her reason for leaving was that her husband, suffering from Alzheimer’s disease, needed her care at home. But John O’Connor’s rapidly progressing dementia soon made that plan unrealistic, and he spent his final years in a nursing home in Phoenix. He died last November at 79. Had Justice O’Connor waited a year to resign, as she was prepared to do, it might have become clear to her that there was little she could do to help her husband, on or off the bench.

Now a vigorous 80 — a decade younger than the recently retired John Paul Stevens — Sandra Day O’Connor is constantly on the road, sitting as a senior judge on federal appeals courts around the country and speaking in support of her twin causes, judicial independence and civics education. This weekfound her in Des Moines. Had she remained on the court, she would be beginning the new term as the senior associate justice.

Now back to the mystery of the chief justice’s public invisibility. It’s the opposite of what I expected. After his masterly performance at his confirmation hearing, I anticipated that he would become the new young public face of the Supreme Court. I admired Chief Justice Rehnquist, but with his ungainly shuffle and often distracted and slightly demonic air, no public relations expert would have picked him to help personalize a remote and forbidding institution. John Roberts seemed the opposite, with his cute young children and a ready smile that made the television camera his friend. Not that I expected him to go on a barnstorming tour or to turn the Supreme Court into the People’s Court. But I did think he might air the place out a bit, demystify it, make it more approachable through some well-placed public outreach.

Instead, that role seems to have fallen to Justice Sonia Sotomayor, who in her public appearances speaks readily about her life and who will soon publish a pre-court memoir. In her native New York City, she has even become a bit of a rock star,her visits to favorite restaurantsdeemed worthy of public attention. I’m not suggesting that she seeks publicity, but she enjoys people, and people respond to her.

The chief justice’s hard-wiring is simply different. I suspect that the Pew poll, if he learned about it, came as welcome or at least not disappointing news. He is an intensely private person, and it may not be too unfair to suggest that in his heart of hearts, he’d like to take the Supreme Court private as well. After all, it was his decision, rich in unfortunate symbolism and imposed over vigorous internal opposition, to take a step that seems as amazing now as it did when it was announced four months ago:to keep the public from entering the Supreme Court by the front door.

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Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The New York Times from 1978 to 2008. She teaches at Yale Law School and is the author most recently of the book “The U.S. Supreme Court: A Very Short Introduction,” as well as a biography of Justice Harry A. Blackmun, “Becoming Justice Blackmun.” She is also the co-author, with Reva B. Siegel, of “Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling.”

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