Roberts stresses ‘independence from the political branches’

Chief Justice John Roberts alluded to the bitter and partisan confirmation battle over Brett Kavanaugh’s nomination to the Supreme Court in an appearance Tuesday night — his first public remarks on the topic.

Roberts stressed in a speech at the University of Minnesota Law School that the judiciary “requires independence from the political branches.”

“I will not criticize the political branches,” he said, but added that the judicial branch “must be very different.”

“I have great respect for our public officials. After all, they speak for the people, and that commands a certain degree of humility from those of us in the judicial branch who do not,” he said. “But we speak for the Constitution — our role is very clear. We are to interpret the laws and Constitution of the United States and ensure that the political branches act within them.”

“That job obviously requires independence from the political branches,” he said.

Without mentioning Kavanaugh by name, Roberts commended recent remarks by his “newest colleague” during his ceremonial swearing-in at the White House. At that event, Kavanaugh said he would not serve “one party or one interest.”

Roberts said he wanted to assure “that we will continue to do that to the best of our abilities, whether times are calm or contentious.”

Roberts said his colleagues know that “the best way to do our job” is to work together in a “collegial way.”

The speech represented an unusual foray into controversy and an attempt to distance the court from the rancor surrounding Kavanaugh’s confirmation, which featured the most political hearings in the modern era. Roberts also sought to make assurances that the Supreme Court would not become another political branch.

He spoke of the importance of judicial independence and acknowledged the court has “from time to time erred greatly” but said that when it had, it was because the court had “yielded to political pressure.”

He specifically cited the 1944 Korematsu case, which he said had “shamefully” upheld the internment of Japanese-American citizens during World War II.

Later, Roberts moved from the podium to an armchair for a more wide-ranging conversation with professor Robert A. Stein.

Asked how it felt to have a new colleague Roberts joked, “it’s like having a new in-law at Thanksgiving dinner,” and added that his colleagues have so far behaved themselves better by not interrupting each other so much.

On a more serious note, he spoke broadly about an early goal he had as a chief justice, to achieve greater consensus on the court by issuing more narrow opinions. “I’d have to say it’s a project in progress still,” he said, noting that in some years there is more consensus than others, depending on the issues at hand. But he said he still believes consensus is an important objective.

He repeated that he is not a fan of cameras in the courtroom: “I think if there were cameras that the lawyers would act differently. I think, frankly, some of my colleagues would act differently, and that would affect what we think is a very important and well-functioning part of the decision process.”

Roberts was asked by a student whether having more women on the court has affected the way he looks at cases. “I understand the argument that it brings a different perspective,” the chief justice said. “On the other hand, it may, but I would say it’s subconscious in the sense that I don’t hear anything and think, ‘Oh, that’s a peculiarly female perspective on the law.’ In terms of the legal work and the presentation, I don’t see a difference. Maybe I’m just not attuned to it, but I think my female colleagues perform pretty much the same way my male colleagues do,” he said.

He was also asked if he’s ever come to a legal conclusion that was at odds with his personal beliefs. Roberts referred to a 2011 case where he wrote a major First Amendment opinion protecting speech at military funerals by members of controversial Westboro Baptist Church. He called the church an “extraordinarily offensive group” that would protest at funerals for servicemen “in the most vulgar way.” He said his personal view was to lock up the members of the church and “throw away the key.” But he said his job was to apply the First Amendment. “The protesters were on the public sidewalk. They had a particular point of view, as offensive as it was, and so I wrote the opinion for the court,” he said. “I think the vote was 8-1 upholding their right to — to protest in that matter. I didn’t like it, but I thought, and as my colleagues did, that was the right answer.”

He said the court is a collegial place, and the justices form a bond sometimes because “we are often the only people we can talk to about certain subjects.” He said they have lunch together on argument days and conference days, where he demands one thing: “The one rule that I enforce there is that we don’t talk about work. So it’s a nice opportunity to learn about different things. You can learn how the Phillies are doing from Justice Alito, and the latest performance of ‘Traviata’ from Justice Ginsburg.” He also noted that the summer break is useful: “We need a little break from each other and we get it.”