Amicus With Dahlia Lithwick | Chief Justice John Roberts, a Rock, and a Hard Place

Episode Date: January 5, 2019
Host: Dahlia Lithwick
Guest: Joan Biskupic (CNN Supreme Court analyst, biographer, legal journalist)

Episode Overview

This episode dives into the evolving role of Chief Justice John Roberts at a time when the Supreme Court faces unprecedented public scrutiny, political polarization, and institutional challenges—particularly under the Trump administration and after the divisive confirmation of Justice Brett Kavanaugh. Host Dahlia Lithwick and guest Joan Biskupic analyze Roberts’s attempts to balance his deeply conservative judicial instincts with his responsibility to preserve the Supreme Court's legitimacy as an impartial, apolitical institution.

Key Discussion Points & Insights

1. The State of the Judiciary and #MeToo in the Courts

• Roberts’s most recent “State of the Judiciary” report only glancingly addressed sexual misconduct in the courts, describing the issue as primarily one of "incivility or disrespect."
  • Biskupic: "Using the word incivility or disrespect does tend to minimize what might be going on." (04:05)
  • Critics say real data is lacking and reporting channels for victims are ineffective and intimidating.
  • Roberts focused on the judiciary faring "better" than other sectors regarding harassment, but Biskupic challenged how such claims could be substantiated without rigorous study.
• Quote:
  • Biskupic (on Roberts's minimization): "One question I would raise right away is how would we know?" (04:37)

2. Roberts’s Public Focus on Civility and Tone

• Roberts repeatedly calls for a reduction in partisanship, emphasizing “tone” and “civility” in both the judiciary and public discourse.
  • Lithwick: "The more John Roberts talks about the need for civility... the more it feels like he's saying, please don't talk about things that are really problematic." (11:44)
• This is viewed as both a genuine effort to lower the temperature and, at times, a rhetorical move to avoid addressing deeper systemic issues.

3. The Court's Political Polarization Post-Kavanaugh

• The Court is now a 5-4 split with all conservatives appointed by Republicans and all liberals by Democrats—making Roberts the key swing/median justice.
  • Biskupic: "Without Kennedy, the court is much more divided exactly along those lines. And John Roberts is now the median. And he is no centrist conservative with a record of joining the left on closely watched social policy disputes as Kennedy was." (15:08)
• Roberts is thus torn between personal conservative ideology and a mounting institutional duty to safeguard the Court’s reputation and legitimacy.

4. Responding to President Trump’s Attacks on the Judiciary

• Trump has openly disparaged “Obama judges” and cast doubt on judicial impartiality.
  • Roberts, usually reticent, publicly pushed back: “We do not have Obama judges or Trump judges...” (Referenced around 21:15, and November 2018 news event)
  • Biskupic: "What bothers him is ... the notion that once an individual is in the black robe, he or she is an automatic vote for the president’s case. And that is exactly what Donald Trump is constantly ... directly stating." (24:09)

5. Roberts’s Long Game: Legacy and Institutional Stability

• Lithwick and Biskupic emphasize that Roberts thinks in decades, not just terms—keenly aware of historical precedent, future repercussions (like court-packing), and his own legacy.
  • Biskupic: "If I learned anything ... he has a terrific ability to see out into the future years ahead of what's going to come next." (26:41)
• Roberts aims to avoid both the appearance of partisanship and perilous precedent (such as a Supreme Court seen as "Trump’s Court") that could provoke Democratic countermoves in the future.

6. The “Balls and Strikes” Metaphor Examined

• Roberts’s famous comparison of justices to baseball umpires is critiqued as oversimplifying the inherent complexity and subjectivity of constitutional interpretation.
  • Lithwick: "There’s no strike zone in the Constitution ... There are no hard and fast rules that can only be interpreted." (30:02)
• This rhetoric, while institutionally beneficial, often serves conservative interests and can mask real ideological divisions.

7. Two Types of John Roberts: The Institutionalist vs. The Conservative

• Biskupic distinguishes between “Long Game Roberts” and “Near-Term Roberts.”
  • On core issues (race, religion, reproductive rights), he’s a reliable conservative.
  • On procedural or non-core issues, especially those touching on the Court’s legitimacy or Trump's procedural overreach, Roberts is more cautious and sometimes sides with liberals to protect processes and the institution.
• Lithwick: "He will be very consistent on the things that matter deeply to him. But on some of this stuff it’s just not going to be worth it for him to take a reputational hit, either personally or for the court." (38:00)

8. Roberts’s Recent Votes: Strategic “Non-Moves”

• Roberts recently joined liberal justices in refusing to allow Trump’s “asylum ban” policy to take effect and has brushed away other Trump-administration emergency appeals.
  • Biskupic: "People in the judiciary like hierarchies, they like orderliness, and nobody wants anything disruptive." (44:38)
• These procedural, non-merit decisions help reinforce the narrative that courts are impartial and follow traditional processes, not political winds.

9. Roberts and Ethics Complaints about Kavanaugh

• Discussion on whether Roberts deliberately shielded Kavanaugh from ethics investigations after confirmation; Biskupic finds no clear evidence of manipulation, but acknowledges perceptions of conflict remain. (47:55–49:35)

10. The Secret Mueller Subpoena (Mystery Grand Jury)

• Roberts’s minimal role as “circuit justice” in the mysterious sealed case cited as evidence of how routine procedure can be misinterpreted as partisanship, given the secrecy and stakes. (49:36–50:39)

11. Big Term Ahead: The Cases Looming Before the Court

• With cases on LGBTQ rights, gerrymandering, DACA, and more, Roberts faces an impossible tightrope: avoiding high-profile partisanship while the docket gets only more political.
  • Biskupic: "There's no gentle at the Supreme Court anymore. It's just by virtue of who's up there and our times and this divided government." (54:01)

Notable Quotes & Memorable Moments

• Biskupic on institutional concern:
  "He is not existing only in this moment. He's very good at looking ahead. ...he's very shrewd in how he looks to the future." (27:10)

• Lithwick on Roberts's rhetorical moves:
  "The more John Roberts talks about the need for civility... the more it feels like he's saying, 'please don't talk about things that are really problematic.'" (11:44)

• On ideology vs. reputation:
  "He will be very, very consistent on the things that matter deeply to him ... But on some of this stuff it’s just not going to be worth it for him to take a reputational hit, either personally or for the court." – Lithwick (38:00)

• On the metaphor of balls and strikes:
  "It sounds so good, doesn't it, that, you know, we just call them as, you know, balls and strikes. But there's no strike zone in the Constitution." – Biskupic (30:02)

• On Roberts and court-packing:
  "I think he's worried about a potential backlash and what happens down the road when the Democrats take control. ...I think John Roberts sees that and he sees other potential moves ... that could also challenge the Supreme Court's impartiality and role in America." – Biskupic (27:12)

Timestamps for Key Segments

• 00:34 – Dahlia Lithwick sets up episode; intro to Roberts's delicate balancing act.
• 03:10–06:46 – Discussion of Roberts’s handling of sexual harassment in courts.
• 10:43–12:21 – Roberts’s emphasis on tone and civility post-Kavanaugh.
• 15:08–18:07 – The 5-4 polarized Court; Kennedy’s retirement; Roberts’s new centrality.
• 21:15–23:38 – Trump's attacks on judiciary and Roberts's public response.
• 24:09–26:41 – Joan Biskupic on Roberts’s own history in judicial appointments; concern over perception of partisan loyalty.
• 30:02–31:45 – Deep dive on the “balls and strikes” metaphor.
• 34:22–39:14 – Roberts’s long-term and short-term moves; cases he’s pushed aside.
• 42:55–44:38 – Strategic refusals to take up Trump administration cases; maintaining process legitimacy.
• 47:55–49:35 – Ethical complaints against Kavanaugh and Roberts’s handling.
• 49:36–50:39 – Roberts’s procedural role in the sealed Mueller-related case.
• 54:01–56:19 – Upcoming high-profile cases; inevitability of Supreme Court drama.
• 56:19–57:20 – Lithwick and Biskupic sum up Roberts’s dilemma: “between a rock and a hard place.”

Tone & Language

The conversation is reflective, nuanced, and candid, maintaining both a sense of urgency about the stakes for the courts and the nation, and a respect for the complexity of Roberts’s motivations and decision-making.

• Candid skepticism: Lithwick frequently questions whether invocations of “civility” are a strategic dodge rather than a substantive reform.
• Historical perspective: Biskupic grounds Roberts’s choices in a deep awareness of both history and future consequences.

For Listeners Who Missed the Episode

• This episode offers a comprehensive, deep dive into the mind and maneuvering of Chief Justice John Roberts.
• It provides context for his recent decisions, the institutional and political pressures he faces, and speculation about the future of the Court.
• The hosts skillfully balance inside-baseball detail (e.g., judicial process, judicial conduct codes) with broader constitutional stakes, making the show accessible yet rich for legal aficionados.

Summary

Roberts, at the center of a polarized Supreme Court, is navigating an era where the very legitimacy of the Court is at stake. His recent moves—public comments, procedural votes—reveal both a strategic institutionalist and a cautious conservative. As larger cases loom, the episode ends with the recognition that Roberts is likely to remain "between a rock and a hard place" for the foreseeable future.