New York Times

Roberts on the Court’s Changing Face (Beards Optional)

November 24, 2015

by Adam Liptak

Chief Justice John G. Roberts Jr. offered reflections on one of his predecessors Friday night, and in the process he illuminated his own place on a Supreme Court that he said had grown both more and less political.

He also made two lighthearted promises. He will not run for president, he said, and he will not grow a beard.

His subject was Chief Justice Charles Evans Hughes, who rejoined the court in 1930 after a glittering career in public life. Hughes had been governor of New York, an associate justice of the court, the Republican nominee for president (losing narrowly to Woodrow Wilson), secretary of state and a Wall Street lawyer who argued more than 50 cases in the court.

“He was an important public figure,” Chief Justice Roberts said. “The beard helped. He looked like God.”

The evening, sponsored by two historical societies, took place at New York University’s law school. It started with a breezy overview of Hughes’s career by Chief Justice Roberts, who noted that his subject’s first confirmation to the court, in 1910, had come easily.


 

“A week after his nomination, the Senate unanimously confirmed him during a five-minute session without any hearing,” Chief Justice Roberts said. “Those were the days.”

The second confirmation, in 1930, was closer, a consequence of Hughes’s Wall Street ties during the Great Depression. The vote was 52 to 26. Chief Justice Roberts was confirmed by a wider margin, 78 to 22.

The evening concluded with a conversation between the chief justice and Robert A. Katzmann, the chief judge of the federal appeals court in New York.

Chief Judge Katzmann asked how a candidate with Hughes’s political background and paper trail could have been appointed to the court. Chief Justice Roberts responded that “the court was not regarded as such a partisan football” back then.

“A lot of the nominations of this time were Republican presidents appointing Democrats and vice versa,” he said. “It wasn’t regarded as a place where partisan matters would be worked out.”

On the current court, for the first time in history, all five of the Republican appointees have voting records to the right of all four of the Democratic ones.

It used to be routine, too, Chief Justice Roberts said, for presidents to appoint prominent public figures to the court. In 1941, the year Hughes left the court, Chief Justice Roberts said, “you had two senators on the court, a representative, three former attorneys general.”

The court that decided Brown v. Board of Education, the 1954 decision banning segregation in public schools, included Chief Justice Earl Warren, a former governor of California; Hugo L. Black, a former United States senator; William O. Douglas, who had been chairman of the Securities and Exchange Commission; and Robert H. Jackson, who had been the attorney general.

By contrast, Chief Justice Roberts said, until Justice Elena Kagan arrived in 2010, “every single member of the court had been a court of appeals judge.”

He did not comment Friday on the significance of the narrowing of the career paths, but in 2009 he said the development was a positive one, resulting in decisions with “a more legal perspective and less of a policy perspective.”

On Friday, Chief Justice Roberts said the court is now the last stop in a public career. “I can safely say none of us are running for president,” he said and then paused, apparently thinking better of the categorical statement. “I can only speak for myself,” he said. “You never know.”

Hughes was the first leader of the court to preside in its current courthouse, which is celebrating its 80th anniversary. The New York Times reported on the opening session, Chief Justice Roberts said, describing how Justices Owen J. Roberts, Louis D. Brandeis and Pierce Butler had adjusted to their new surroundings.

“Justices Roberts and Brandeis fingered new appliances on the bench and explained them to Justice Butler,” Chief Justice Roberts said, quoting the article.

For his part, Chief Justice Roberts concluded that journalism, at least, has an unchanging quality.

“Even then,” he said, “ ‘all the news that’s fit to print’ included gentle jabs at our technological prowess.

Chief Justice Roberts is sometimes said to lead the Supreme Court, but he said his position had only limited power.

“I have the same vote as everybody else,” he said. “I can’t fire them if they disagree with me. I can’t even dock their pay.”

Still, he added: “Somebody does have to moderate the discussion.”

The chief justice, he said, also has a greater public role. “Somebody does have to represent the institution to the outside world and to the other political branches,” he said.

Chief Justice Roberts, 60, has just completed his first 10 terms, and Chief Judge Katzmann asked about his plans for the next 10.

“I think about the cases for the next sitting the Monday after Thanksgiving,” Chief Justice Roberts said, “and not much beyond that.” The two-week sitting will include cases on voting rights and affirmative action.

He did make one concluding commitment. “I’m not going to grow a beard,” he said.