The High Court Goes Courting
Supreme Court justices talk to the media in self-defense.
Chief Justice John Roberts is the Dr. McDreamy of the federal bench. If you doubt that, check out his performance last night on Nightline. Before 3,000 spectators at the University of Miami, Roberts proved that his whole sweet/funny/smart/humble thing at last year's televised confirmation hearings was just foreplay. Not only is the new chief justice unafraid of the media spotlight, he—perhaps alone among his Supreme Court colleagues—has figured out how to use it to his advantage.
Unlike Justice David Souter, who loathes the cameras to the point of some kind of pathology, Roberts embraces the lens, which adores him right back. Unlike Justice Clarence Thomas, whose view of all media is—perhaps understandably—constrained by an us/them isolationism, and unlike Justice Antonin Scalia, whose prickly contempt for the media keeps crashing head-on with his desire to have a voice in the broader national conversation about the law, only the chief understands the whole honey/vinegar problem.
Roberts alone recognizes that the media are better friends than enemies. He sees that the press can be gamed to disseminate a view of judging and the judiciary, and the clarity and effectiveness of his message is indisputable.
At precisely the moment when American anxiety about unconstrained judges is peaking, Roberts gives eloquent voice to a comforting theory of judicial minimalism and restraint. He speaks soothingly of deference to the elected branches and of a narrow, baby-steps approach to changing existing precedent. One of Roberts' most illuminating comments last night was that if he were to draw up a list of the virtues he deemed most important to deciding a case, "boldness would rank closer to the bottom." What he values instead is democracy and the will of the people. And it's awfully hard to be scared of a timid judiciary.
There is a debate raging among legal academics as to whether the new chief justice really is a judicial minimalist or merely plays one on TV. Similarly, there is some question as to whether he is truly an unabashed proponent of unanimity or whether he'd simply prefer that the court be unanimous, so long as it unanimously agrees with him. Some of Roberts' most important decisions last term were neither humble nor unanimous, and while it's still too early to tell, it's fair to say that his impulse to judicial minimalism is tempered by his impulse to Sherpa the law along a more conservative footpath. But all of these nuances tend to fall away in a prime-time television interview, and the lasting impression is of a serious man taking his constitutional responsibilities seriously.
Well, maybe not that seriously. Roberts, of course, stayed away from discussions of any current or pending cases last night, but he brought the house down with his candid admission that "I don't think anybody can tell Justice Scalia what to do." He offered some sweet insights into the humbling effect of small children on the egos of those in even the highest stations, and in so doing he confirmed that his small son, Jack, was not in fact boogying in that delicious July 2005 Bush press conference announcing Roberts' nomination to the high court. "People think Jack was dancing," noted the chief—who confirmed last night that his colleagues address him as "Chief." "He was not dancing. He was being Spider-Man, shooting the webs off."
Chief Justice Roberts isn't the only one to have launched a media charm offensive this fall. Former Justice Sandra Day O'Connor has been pounding the pavement on the issue of judicial independence, and Justice Stephen Breyer, who is still a sitting justice, recently joined her at a major conference on the subject at Georgetown University Law School and in a September PBS interview with Gwen Ifill. While Roberts tends more toward the folksy dad-next-door, O'Connor errs on the side of humorless gravitas, with Breyer falling comfortably into the role of quirky constitutional scholar. No matter. The range of their media voices is a plus. While the messages of the three jurists may differ as much as their styles, the concern that animates all three is the same: Don't be afraid of the courts, they all say. The judges are harmless—or at least they all strive to be.
Individual politics and ideology notwithstanding, what's most important about this unprecedented new era of the Talk Show Jurist is just this: As Americans begin to see their justices as real people with real concerns and real dandruff, their fear of an isolated, elitist, and out-of-touch judiciary begins to recede. We may not all be completely sold on Roberts' idea of minimalism or on O'Connor's opposition to judicial oversight. But we are at least beginning to see our justices taking their case to the American people and grappling to justify their own role in this democracy. Trivial as it may sound, it's awfully nice to know that they care enough to finally talk to us.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of John Roberts by Joe Raedle/Getty Images.