Examining is said that Chief Justice Roberts makes his

Examining Chief Justice John G. Roberts
Gaylon L. Viney
University of Central Oklahoma

Abstract
Chief Justice John G. Roberts serves as Chief Justice on the Supreme Court as of September 29, 2005. It is said that Chief Justice Roberts makes his decisions, he makes them with a certain style and tone that not only convey his distinct legal positions but his own personal positions on matters as well. He spent his time not only as Chief Justice but also as a White House counsel and Deputy Solicitor General in two Republican administrations. Most would say he is a conservative based on the jurisprudence of his lower court rulings and serving under two Republican terms but his personality judicially was a factor they did not consider. This paper will attempt to understand the ideological values of Chief Justice John G. Roberts.

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Chief Justice Roberts served on the Court of Appeals for the District of Columbia Circuit. During his time in D.C., he delivered forty-eight opinions. forty-three for his court, two concurrences, two dissents, and one hybrid-an opinion both concurring and dissenting in part. These many opinions were brief and generally centered around administrative laws. Chief Justice Roberts circuit opinions show his manner of approaching written appellate decisions. During his Circuit court time, Chief Justice Roberts ideological values did not show much. Most of his decisions were made with the majority opinions. Only two of his dissents belong to his name during this time. His lack of ideological views at this time illuminates how crafty he was by agreeing with his peers. Some of the arguments made involved many rejections to litigant cases that they all viewed as optimistic versus compelling. It is in his circuit court opinions that draw upon the Chief Justice’s values. In a research paper about Chief Justice Roberts, Laura Krugman Ray stated that “From his earliest opinions, Roberts has shown an affinity for the mot juste, the single word that will sharpen a sentence by identifying precisely how someone has acted or what is at stake, often in surprising ways. His use of adverbs is illustrative. A challenge to the court’s jurisdiction need only be “meekly noted” in order to be taken seriously. A relevant precedent “establishes (unremarkably)” a litigant’s right to appeal on an issue. Congress would have acted “quite elliptically” if the appellants’ strained reading of its intent were accurate. And a car theft victim might remain “blissfully unaware” of his loss until the next morning.” (Ray, L. 2008) The style used shows the savvy and appeal towards the Chief Justice. When comparing him to the late Justice Scalia, it is said that Roberts is more personable when explaining his logic versus Justice Scalia’s confrontational manner which. The conversations Roberts has with his listeners is not to challenge the opposition but to win the listener’s trust.

A strategic model is a form of judicial decision making that explains and shows how judges make their decisions. The strategic model shows a personal preference for policies and goals. All judges have a certain model they follow. Roberts is said to have a strategic model based on his moderate approaches to decisions he makes. Roberts designated cases decided by the majority to the opposite side to write the majority opinion. Cases decided majority liberal was written by the conservative side and the majority conservative side decisions were written by the liberal justices. The table below for The Pace Law Review of 2016 shows how many majority opinions were written and by which justice.
Opinion Assignments by Chief Justice Roberts in Criminal Justice Cases, By Justice and Majority Type, 2005-2015? 
Majority opinions authored by type of
majority

Unanimous
Non-
Five-

Unanimous
Member
Author
Total
Con
Lib
Con
Lib
Con
Lib
Alito
30
8
5
16
1
7
0
Scalia
28
10
3
10
5
4
0
Roberts
27
5
5
13
4
3
1
Breyer
27
10
3
9
5
0
0
Ginsburg
26
11
2
4
9
0
1
Thomas
23
6
4
12
1
7
0
Kennedy
21
5
2
8
6
6
1
Sotomayor
11
3
0
3
5
0
0
Stevens
10
0
1
4
5
1
0
Kagan
10
2
3
2
3
0
0
Souter
8
0
4
1
3
0
0
TOTAL
221
60
32
82
47
28
3
(Pace Law Review)

Chief Justice Roberts divided his cases up almost evenly to his justices regarding the make-up of liberal to conservative justices. This shows the how the Chief Justice exercises his power in the distribution of assignments. A theory I have is that it would allow conservatives to better fully understand a liberal point of view and liberals to understand a conservative viewpoint. I think this allows the courts to be more level when discussing aspects of decisions. To add, Chief Justice Roberts voted far more conservatively when comparing him to Justice Kennedy. Could this be the formation of another conservative justice? No, I believe that Roberts would usually vote with the majority based on ideological values he has. He is someone who is very articulate and precise which lead him to be logical in his judicial decision making so, he fully understands the entire picture before he answers. It is noted that liberal minds tend to be more theory based and conservatives more based on the factual context. This is why Chief Justice Roberts is considered a conservative justice. He does not believe in the theories but, rather, the factual context and basing them off of experiences. During his confirmation hearing, Roberts stated that he is a modest judge. Stating that the judge’s role is to decide cases, not to legislate them. (Ind. L.J.) This would allow for a more harmonious unity between the two sides of justices.

In the next section, a graph from The Pace Law Review again shows the voting decisions of Chief Justice Roberts. This graph shows the swing and majority votes in criminal justice decisions.
Table 7: Swing and Majority Voting in Non-Unanimous, Criminal Justice Decisions, by Justice and Majority Type, 2005-2015
Justice
% in
% in
% in
% in 5-Member
Swing
(votes)
Majority
Conservative
Liberal
Majority
Votes

Majority
Majority

Kennedy
86.6
92.0
81.2
82.9
29
(172)

Kagan
76.4
46.7
97.6
65.6
1
(72)

Roberts
75.4
94.3
56.0
44.9
3
(171)

Sotomayor
71.9
38.6
100.0
63.2
1
(96)

Breyer
67.3
47.7
87.1
55.7
7
(171)

Ginsburg
65.7
36.8
95.3
58.6
3
(172)

Scalia
64.5
81.6
47.1
47.1
9
(172)

Souter
63.5
38.1
96.9
51.6
1
(74)

Alito
62.7
100.0
24.4
47.8
2
(166)

Thomas
57.6
89.7
24.7
51.4
8
(172)

Stevens
56.8
29.6
92.7
50.0
2
(95)

N
172
87

Majorities (Pace Law Review)

Interesting enough, the Chief Justice votes with the majority in criminal court decisions but he also is in more than half of the liberal, non-unanimous majorities. (Pace Law Review) This shows the unbiased and logical approach to his decision making. Out of one hundred and one cases as Chief Justice, Roberts wrote the majority opinion in twenty-five. While being in the majority a whopping eighty-five times. The way the Chief Justice delegates opinions from a subjective view says that he stays within the conservative bounds but at the same time he believes in the judicial process so he will not vote with the conservative majority every time. The law is very particular and it is the justices who interpret it and conversely speak about it with their listeners and use it for precedence.

Ideological values truly tip the cap one way in judicial decision making. Paul Foote of The New England Journal of Political Science says, “Moderate justices adopt an issue-by-issue or case-by-case approach rather than one based on rigid ideological concerns. Since moderate justices lack a firm ideological predisposition, they are more likely to be influenced by external pressures in cases that are salient. External pressures consist of public legitimacy concerns, Congressional statutory action, and media attention.” (Foote P.D.)
Moderates would say that this can determine the source of power on the Court. I do not believe that Roberts does not have an ideological predisposition, but a certain method to his decision making. He considers everything he has learned about a case and applies it to his own experiences and values. When you explain or make decisions over something based on your own experiences, you make the case relatable to you which in turn, I believe make it more personable with the listener. Roberts wants to keep the prestige of the court intact because when voting in precedence, you can keep the integrity of the Courts decision. These interpretations of the law maintain the trust in the American people. Precedence is followed because it allows for a basis of future cases that may have some similarity. This could go on to add that decisions made by Roberts are made to not only protect precedence but also to respect the Supreme Court as a legal institution. He does not want the Court to look like a policy-driven institution because that would diminish the legitimacy and that would diminish the power. If a case can be decided based on procedures and laws already in place then he will do so in that manner. Chief Justice Roberts is a very patient justice. He does not jump to conclusions but, rather, if a case needs to be decided on merit then he will if it is necessary.
Roberts view on the Commerce Clause indicates his moderation in judicial decision making. In the case of United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, the judicial restraint and moderation showed because in the opinion he authored, he explains that “Commerce Clause did not prohibit local governments from favoring themselves in waste-control ordinances.” (Alberto R. Gonzales) Roberts judicial restraint, in this case, is impeccable. Judicial restraint is something Roberts is also known for. Judicial restraint is a theory that promotes the limitation of a judge’s power. It essentially says that judges should not come to conclusions quickly about laws unless they are unconstitutional. Roberts ability to assert judicial restraint within cases allow his moderation to show as well. Even-keel decision making is very tough when you throw in ideological views, media, etc… Chief Justice Roberts ability to not go to the extremes when considering the outside attention with being the Chief Justice, is supreme. Actively listening and conversing back only after you have all the facts truly show the middle ground upon which the Chief Justice Stands. Roberts could be noted as a decision-maker who is reticent. The decisions he makes are often objective within the boundaries of the law, even-keel, and logically concluded. Chief Justice Roberts is very particular when it comes to proper jurisprudence. Alberto Gonzales says that Roberts follows a distinct pattern in the opinions. “1. Judicial Avoidance: If at all possible, cases must be dismissed on grounds of standing, mootness, or ripeness. Never rush to make a decision unless necessary, and avoid the temptation to reinvent extant legal interpretations of law or precedent. 2. Judicial Deference: Defer to the separate political branches and elected officials so long as they operate within constitutional boundaries. The legislature is elected to create the law, for better or for worse. The judiciary’s role is not activism, nor should it have opinions on those issues before it. The Court’s role is only to determine legality in context of current law, regardless of the relative value of potential outcomes 3. Narrow Construction: Avoid categorical rules; if a case must be decided, then limit holdings as much as possible to the facts at hand. If a law is found to be unacceptable, then every reasonable effort must be made to preserve the surrounding legislation. 4. Clarity: If a new standard is defined, then that standard should be clear, concise, and easily applicable to a very specific set of facts. Any new standard should avoid confusing conflicts with precedent, and any standard that is overruled should be replaced with precision rather than generalization. This reinforces the need for judicial deference: to hold a legal law or policy invalid because it is generally undesirable also violates a standard of clarity when it fails to provide a detailed replacement policy based on direct analysis of the governing law.” (Alberto R. Gonzales.) This shows the direction Chief Justice Roberts goes when determining cases. It eludes back to how Roberts wants to keep the intellectual integrity of the institution proper and how he is slow to come to render a decision until he has everything accounted for.
To end, Chief Justice John G. Roberts ideologies are very eluding. On one hand, he is said to be conservative, which the charts mentioned show his statistics, while on the other, his judicial decision making based on his ability to decide with judicial restraint and moderation explains how some view him not as a conservative justice, but as a justice who stands on the middle ground of the court. By not conforming to what the other justices, this shows how Roberts can become a great leader because he wants to protect the Court’s integrity and precedence of decisions. He is someone who will not abuse the role he is given but uphold the institution’s intellect. His ideological values, in my opinion, would definitely lean more towards conservatism but his willingness to explain and relate experiences to cases allow me to view Chief Justice Roberts as a moderate conservative like most of the articles researched.

Bibliography

McCall n1, Michael A., and Madhavi M. McCall n2. “Quantifying the Contours of Power: Chief Justice Roberts & Justice Kennedy in Criminal Justice Cases.” Pace Law Review, vol. 37, 2016, pp. 115–352.

Whitehouse, S. (2015). Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts. Harvard Law & Policy Review, 9(1), 195.

Greenhouse, L. (2013). CHIEF JUSTICE ROBERTS IN HIS OWN VOICE: THE CHIEF JUSTICE’S SELF-ASSIGNMENT OF MAJORITY OPINIONS. Judicature, 97(2), 90-97.

Foote, P. D. (2016). Balancing the ideological scales: Chief justice John G. Roberts, Jr. and moderation on the U.S. supreme court. The New England Journal of Political Science, 9(1), 74-106.

Alberto R. Gonzales. (2014). IN SEARCH OF JUSTICE: AN EXAMINATION OF THE APPOINTMENTS OF JOHN G. ROBERTS AND SAMUEL A. ALITO TO THE U.S. SUPREME COURT AND THEIR IMPACT ON AMERICAN JURISPRUDENCE. William and Mary Bill of Rights Journal, 22, 647-1293.

Ray, L. (2008). The style of a skeptic: The opinions of Chief Justice Roberts. Indiana Law Journal,83(3), 997-1034.

Whitehouse, S. (2015). Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts. Harvard Law & Policy Review, 9(1), 195.

White, B. (2012). Judicial Politics, Chief Justice Roberts’s Legacy, and the National Federation of Independent Business v. Sebelius Decision. Justice System Journal, 33(3), 367-372.

Call, J. (2010). The Roberts Court and Police Practices: The Impact of Chief Justice Roberts and Justice Alito in Police Practices Cases. American Journal of Criminal Justice, 35(4), 236-249.

Hudkins, J., & Aune, James Arnt. (2011). The Supreme Court’s Chief Umpire: Judging the Legal Rhetoric and Judicial Philosophy of John G. Roberts, Jr., ProQuest Dissertations, and Theses.

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