A thicket of commentary has blossomed around the figure of Chief Justice Roberts. The bulk of it, however, has either focused exclusively on his role in the 2011 term or has lumped him in uncritically with the Court’s conservative wing. In response, this Article takes a wider view of his tenure, arguing that Chief Justice Roberts is best understood as an idealist, a true believer in the rule of law, with a special sensitivity toward issues of constitutional structure. In the first Part of the Article, I explore Chief Justice Roberts’s penchant for infusing his opinions with “teaching moments”—a tendency certainly on display in National Federation of Independent Business v. Sebelius1 (NFIB), but discernable in many other opinions as well. In the second Part, I revisit Chief Justice Roberts’s much-maligned umpire metaphor. Commentators have unfairly caricatured the metaphor as right-wing wordplay. I argue, by contrast, that the metaphor conveys the same constitutional philosophy as his teaching moments: one in which law is dialectically structured, simultaneously limited and limiting, and it is precisely because of law’s limitations that judges stand on legitimate ground when setting the limits of state action. With this formal picture of judging established, the final Part asks how Chief Justice Roberts’s theory of constitutional judging maps onto his actual jurisprudence. Although Chief Justice Roberts is certainly a judicial conservative—and emphatically not a swing vote—I argue that he does have a notable “federalist streak.” NFIB is certainly one example of this, but a better example is Arizona v. United States2 in which Chief Justice Roberts banded with the Court’s liberals to outline an expansive vision of federal immigration power. I close by highlighting a few other instances of Chief Justice Roberts’s “federalist streak” and by suggesting that they flow from his sensitivity toward constitutional structure, as outlined in the first two Parts.
"The Philosophy and Jurisprudence of Chief Justice Roberts,"
Utah Law Review: Vol. 2014:
1, Article 4.
Available at: https://dc.law.utah.edu/ulr/vol2014/iss1/4