Mark Chenoweth and John Vecchione look back on two decades of the Roberts Court, reflecting on its most consequential rulings—from overturning Roe and Chevron to affirming the Second Amendment and colorblind constitutionalism. They discuss The Wall Street Journal’s recent editorial, “The Triumph of the Roberts Court,” and explore what Chief Justice John Roberts’ steady hand has meant for the Supreme Court’s direction and integrity.

👉 Read the Wall Street Journal article here: https://www.wsj.com/opinion/chief-justice-john-roberts-20-years-supreme-court-bb977114

Mark Chenoweth: If you think that unwritten law doesn’t affect you. Think again. Whether you’re a business owner, a professional, just an average citizen, you are unknowingly going to fall under vague and unofficial rules. When bureaucrats act like lawmakers, they’re really restricting your liberty without the consent of the governed. Welcome to Unwritten Law with Mark Chenoweth and John Vecchione.

John, we’ve arrived at the start of another term of the Supreme Court, and folks are taking a look back at the last 20 years now, of the Roberts Court. We just had the 20th anniversary of John Roberts’ confirmation as Chief Justice of the U.S. Supreme Court. There have been a spate of articles written, sort of looking back at his term. What’s your take? Has it been a good run?

John Vecchione: So, I think it’s been an excellent run, and I agree with the Wall Street Journal. We sort of kick this off by reading that Wall Street Journal 20-year lookback.

Mark Chenoweth: This was an op-ed on October 3rd in the Wall Street Journal: The Triumph of the Roberts Court.

John Vecchione: I thought it was very measured because it talks about the disappointments. But there’s going to be disappointments when you have an amalgam of people pointed over a long time. But what gets me, I remember it like it was yesterday, because my wife always said, “You have this crush on John Roberts.” It wasn’t that I had a crush on him; it was that when he responded to questions, he didn’t say “um,” he had no mental breaks. It’s very hard as an advocate not to have any…like that. It’s very hard to have nothing that you fall back on in order that you collect your thoughts.

Mark Chenoweth: Right.

John Vecchione: He just had his thoughts and would just answer the questions with no pauses; no anything. It was just very impressive. I thought it was a very impressive performance.

Mark Chenoweth: It was.

John Vecchione: Then he takes over, and it was a mixed court then. I think his push is to move the court in what I’ll call an “originalist” direction. Although he wouldn’t say he was an originalist. It’s very interesting. He went to things, but he kept his arms’ length from the Federalist Society, right? So, I think, for people like us – Josh Blackman, I think sometimes says this; our friend Josh says that he’s too cautious, right? He doesn’t want to move fast enough. But I think he’s moving in the right direction. But it’s a matter of whether you’re on the accelerator or not.

Mark Chenoweth: Well, sometimes they do things. They pretend like it’s a part step, and then five years later, they’ll say, “Well, we already decided that.” So, it was decided before, when it really wasn’t decided before.

[Crosstalk]

John Vecchione: He loves doing that. I think that’s a valid criticism too, because you look at it and you say, “Well, I don’t really see how any of that survives given what the rest of it that they’ve said,” right?

Mark Chenoweth: Right. Right.

John Vecchione: Where’s Atlas Roofing right now? Right?

Mark Chenoweth: That’s a great example.

[Crosstalk]

John Vecchione: But I do think that he has been going from the Bush period, to Obama, to Biden, to Trump, and sort of slaloming through that period of 20 years. It’s a difficult task. I think we can’t underestimate it.

Mark Chenoweth: There have been a few challenges to arrive at the court’s doorstep.

John Vecchione: There’s been a few challenges. Now, Steve Vladeck, he says that he has –

Mark Chenoweth: Georgetown professor?

John Vecchione: Georgetown professor, liberal guy. He thinks that Roberts hasn’t protected the court in the court of public opinion.

Mark Chenoweth: Institutionally?

John Vecchione: Institutionally. But I think the only way he could have done that, the way Vladeck would look at it, is by not moving in a conservative direction, right?

Mark Chenoweth: Right. Moderate it more than conservatives would want him to.

[Crosstalk]

John Vecchione: Right. Correct. First of all, it’s more popular than any of the other branches right now, but it is lower than it’s been. But the American people like when it doesn’t do anything controversial, right?

Mark Chenoweth: Well, it’s interesting because it’s a 3-3 court right now, and I think the conservatives feel represented on the court because there’s three strong conservatives on the court. I think the center right and the center feels represented on the court because there’s three strong people that are center to center-right. I think that the far left feels represented because there’s three lefties on the Supreme Court. The center-left really doesn’t have any representation on the courts.

John Vecchione: Well, Kagan.

Mark Chenoweth: Okay. Maybe one. Maybe one.

John Vecchione: In any event, that could be it. But I think it’s because all these attacks are now coming against the court. There’s no – people like us, maybe – but there’s no court defenders. You’ll see attacks from the right, even from the President, on occasion. You’ll see, of course, the progressives they want to make sure we don’t have nine, and then we’ll put 16 people on the court and all this kind of craziness. So, a lot of institutional protection has dropped away over these 20 years. I don’t think that’s John Roberts’ fault.

Mark Chenoweth: Well, I’m like you; I was a fan of John Roberts at the time of his appointment. I think I’ve said on this program before, although not recently, when I clerked on the Sixth Circuit, I had two of my cases that went up to the Supreme Court, and one of them was upheld by the court, and one of them was overturned. Both were nine-zero decisions, and John Roberts was on the winning side of both of them at the Supreme Court. I had the opportunity to watch him argue those cases. Seeing him argue a case that I knew very well was instructive.

John Vecchione: I didn’t know this. I never heard this.

Mark Chenoweth: Oh, yeah. Yeah. Well, I can go into in more detail some other time.

John Vecchione: Right.

Mark Chenoweth: But it was fascinating to watch him argue the case, and he almost persuaded me on the one that got overturned nine-zero. But I was very impressed with him as an advocate. I think most famously, at his confirmation hearing, he said that Justices are umpires, and you have to call balls and strikes, and sort of not be part of the game, I think, is the idea as well. I will say that I think that the court – and I’ll say this, Chief Justice Roberts has not done a very good job this year in keeping the district courts in check. Now, they may feel like they’ve used the emergency docket about as much as they can. But I think there are things other than public statements on the record, or court cases that the Chief Justice can do.

He can go around the country and talk to the circuit conferences and that kind of thing, and say, “Look, district courts don’t have power to do X, Y, and Z. Stop doing it. You’re forcing issues onto the Supreme Court’s docket, and we will have to keep slapping this down. You don’t have this power. Don’t do this.” I think that would be more useful than this repeated trips to the emergency docket to tell district courts, you can’t, for example, reinstate the principal federal officers who have been fired, which keeps happening.

John Vecchione: Right. It does. But again, the life of the law is long. They’re going to knock out Humphrey’s Executor and make it clear. But I also thought, when you just said that, you know, Major League Baseball isn’t going to let umpires call balls and strikes next year. They’re going to use a machine because they didn’t like the way people were doing it. I thought about that when I was watching the playoffs.

Mark Chenoweth: Well, sticking with baseball for just a second. I’m a Kansas City Royals fan, so I’ve been watching some of those games this year, at least when they were still in contention, which was most of the season. When you watch a game with a good umpire, it’s so fun, even if they’re wrong, as long as they’re sort of consistently wrong and in both sides –

[Crosstalk]

John Vecchione: Everybody knows what it is.

Mark Chenoweth: Everyone knows what it is. Both sides are getting the top of the strike zone, or just above the top of the strike zone; whatever the case may be, that’s fine. The ones that are maddening are when you watch, and an umpire is like, sometimes that inside one is a strike, sometimes it’s… You’re just like, “How are somebody supposed to play the game when they don’t know what the rules are?” I think that Chief Justice Roberts has done a good job of the rules.

One other criticism that I’ll make of Chief Justice goes to one of our cases, which is our defense of Judge Newman in the Federal Circuit. I think, maybe not three years ago, but two and a half years ago, Chief Justice Roberts could have picked up the phone, talked to Chief Judge Moore on the Federal Circuit, and said, “No. This is not how we do things. Here’s what’s going to happen. You’re going to send me a request to transfer this case to another circuit, and it’s going to get handled that way. Knock it off.”

I think if he had done that, we could have saved a lot of the besmirching of the reputation of the Federal Circuit that Chief Judge Moore has allowed to take place as a result of the way that she has handled the investigation of Judge Newman. I’m sorry that the Chief Justice hasn’t done that. That said, if and when we get the case up to the Supreme Court, I certainly hope that he –

John Vecchione: Doesn’t listen to our program.

Mark Chenoweth: That he does the right thing at that point in time, but hopefully we won’t have to get there.

John Vecchione: Right.

Mark Chenoweth: I’m hoping the D.C. Circuit will do the right thing.

John Vecchione: Now, I’ll say another thing. He has been the Chief Justice now for 20 years. I don’t know that he’ll go Marshal length, but it already has been a very historic Chief Justice Shipp. I don’t think anyone could take that away from him. At his confirmation, speaking of nine-zero decisions. He was asked why he lost this case nine-zero, and he said, “Because there aren’t any more Justices.”

But I do think that he does know how the court works. He does have an actual, very great respect for the court. Whatever mistakes we think he’s made, they are mistakes, not of malice or because he doesn’t understand the institution he’s in. I think it’s more that he’s in Washington and doesn’t understand who are you afraid to upset?

Mark Chenoweth: Right.

John Vecchione: But nonetheless, it’s been really incredible. If you told me 20 years ago that we were going to have a real Second Amendment. If you told me 20 years ago that we were going to have a colorblind constitution and that these things were all going to come through –

[Crosstalk]

Mark Chenoweth: Is that his most famous vote?

John Vecchione: Yes, I think so. And Roe, obviously, being overturned.

Mark Chenoweth: Those are three biggies.

John Vecchione: Yeah. The fact is that each of them was an originalist direction.

Mark Chenoweth: Can I throw one more in there?

John Vecchione: Go ahead.

Mark Chenoweth: Loper Bright deference.

[Crosstalk]

John Vecchione: There you have it.

Mark Chenoweth: Overturning Chevron.

John Vecchione: Right, exactly. It was also a big one. He was also on the right side of that. I do think that if you look at the –

Mark Chenoweth: He wrote that one.

John Vecchione: Yeah.

Mark Chenoweth: As he did with the affirmative action – or not, the affirmative action, but the Students for Fair Admission to Harvard. That was his case, too, wasn’t it?

John Vecchione: I believe so. Although I think he took Loper because he wasn’t going to let Gorsuch do it, you know what I mean? But nonetheless, the fact is, they’ve all come out the right way. They’ve moved along in a constructive direction. I think all his colleagues like him, you don’t hear anything like you did –

Mark Chenoweth: Sniping.

John Vecchione: Well, I remember the Burger Court. I was a young man, and when you got – just there was not a great love for Burger amongst –

John Vecchione: Who knows what his ideology was?

Mark Chenoweth: I think it was to throw the criminals in jail. Wasn’t that –

John Vecchione: There was that. There was that.

Mark Chenoweth: So, one other thought here, Roberts was a clerk of Justice Rehnquist. He wasn’t the Chief Justice at the time that Roberts clerked for him, but he was a Justice. Then he inherited the court from Chief Justice Rehnquist. I don’t think he was unduly influenced by that. There were a couple of areas where Chief Justice Rehnquist was not a fan of certain doctrine. For example, he was not a proponent of commercial free speech. He was on the wrong side of that issue from the mid-70s when it first cropped up at the Supreme Court. But commercial free speech has had a pretty good ride under the Roberts term.

[Crosstalk]

John Vecchione: Free speech in general has, when you think about it. I think he’s always been on the right side of those issues.

Mark Chenoweth: Alvarez was the really important one. The idea that the First Amendment protects false speech, too. I didn’t go back and check which side he was. But my sense is, you’re right about that. That he’s been on the right side of those issues. Another area that has seen an originalist revamping under the Roberts court is the Sixth Amendment.

The Jarkesy case was a Seventh Amendment case, not a Sixth Amendment case. But it’s part of that same originalist revamping and saying, “Look, juries were part of the original design. We need to get back to that.” He wrote that decision as well. I think Jarkesy is going to stand up over time as one of the great decisions from Chief Justice Roberts.

John Vecchione: I don’t know if he ever tried a jury case, do you? I mean, he was an appellate guy. It’s very, very interesting because I think that you have a better feel for it when you’ve done it a lot of times. But the other thing I do want to have our listeners take a look at, because it goes back, you just said some things happen beforehand.

Mark Chenoweth: I haven’t read that. I’ll have to take a look at that. It sounds good. We’ve got the Wall Street Journal op-ed folks can look at. The Malcolm and Blackman piece, and the Vladeck piece. I’m sure there have been some other retrospectives done, but are there any other sort of lowlights that we haven’t covered? We haven’t really talked about Obamacare.

John Vecchione: No. Well, we haven’t because this is a celebration of the man’s achievements.

Mark Chenoweth: Right.

John Vecchione: But again, I think that is exhibit one in the idea that he doesn’t want the court to be in bad repute. Because there was a supermajority at the time, they had 60 in the Senate, and they lost the one, and it looked like this was an act of political choice that had supermajorities in it. I think he did not want to be the one striking it down. That is not how you’re supposed to think when you’re calling balls and strikes, right? That’s always going to be brought up. It led to my joke. I think I even just said it last week. That whether the Federal Reserve Board can be fired or not, and the independence of the Federal Reserve Board comes before him, he’s going to find out the Federal Reserve Board is a tax, right?

Mark Chenoweth: Any port in a storm.

John Vecchione: Exactly.

Mark Chenoweth: Got to save the bet.

[Crosstalk]

John Vecchione: He’s going to find something. Yeah.

Mark Chenoweth: You might very well be right about that. To me, it’s not so much the Obamacare case specifically. There are a series of laws that were passed. Dodd-Frank’s another one. During that two-year period of time when Obama was president and the Democrats had that supermajority, 59/60 senators at one point.

John Vecchione: Right.

Mark Chenoweth: A lot of that legislation was unconstitutional, bad legislation. The court has been extremely slow to recognize that and overturn it. Now, it has done some of those things with Dodd-Frank. It’s overturned some things. But the Consumer Financial Protection Bureau, I believe, was ginned up during that time as well.

John Vecchione: Correct.

Mark Chenoweth: I think it’s unconstitutionally funded. The court disagreed with us on that, took a look at that, and disagreed with us. There have been some places where I’ve disagreed with the Chief Justice.

John Vecchione: That was written by Thomas, as I always point out.

Mark Chenoweth: Well, I sometimes disagree with him as well.

John Vecchione: It’s the only time I can think of.

Mark Chenoweth: Brand X would be another one. Although he came around on that.

John Vecchione: He disagrees with him.

Mark Chenoweth: Right. Right. He disagrees with him, too. But I agree with you. By and large, Chief Justice Roberts has made good decisions. He’s, I think, kept harmony on the court by and large, when you could imagine that being very difficult to do with some of these decisions coming up.

[Crosstalk]

John Vecchione: Well, especially when the Dobbs decision leaked. I mean, I got to imagine that was internally wrenching.

Mark Chenoweth: Had to be. There was the Alito, sort of, eavesdropping, I guess you’d say, or just taping of what was thought to be a private conversation, right?

John Vecchione: Right.

Mark Chenoweth: There had been a couple of things like that that have happened in the last a few years that could damage relations among the Justices. I don’t think they’ve ever gotten to the bottom of who leaked in Dobbs. That’s a little surprising to me. But I agree with you that he’s managed to keep the personalities in check.

There have been some controversies over outside funding of Justices’ trips, and that kind of thing, too. You could imagine that going differently under a different court leadership. Maybe the last question for you, John. He’s not just the Chief Justice of the Supreme Court. He’s the Chief Justice of the United States. Is there anything in that role that he has done well, or that’s worth commenting on, during his two decades?

John Vecchione: Well, he’s sat on some impeachments, right?

Mark Chenoweth: Yes, he has. Yes, he has.

John Vecchione: I think just one, because I think the second one didn’t go where they had him. He sat on an impeachment, which is very rare. Rehnquist did it as well.

Mark Chenoweth: Right.

John Vecchione: He didn’t make any flubs there. Where, as if you had somebody who was a grandstander, I suppose they could have, right? Then he also does do things with the state courts. I saw the Georgia judge. His name’s escaping me right now, but he just got an award on his service in Georgia. I think that he does reach out to the state courts as well. In those big platforms in the swearing-in, although he did make one mistake.

Mark Chenoweth: For Obama’s first term, right?

John Vecchione: For Obama’s first term, yes. But he redid it, and everything was fine. As Trump would say, “He looks the part.” You know, “He looks like a Chief Justice.”

Mark Chenoweth: He does, and he’s behaved like one as well. I think the triumph of the Roberts Court was a fine title for the Wall Street Journal’s op-ed. I’ll just come back to what you already said. If you had said 20 years ago, Roe would be overturned, the Second Amendment would be vindicated as an individual right. That race discrimination in schools was going to be ended. I’ll throw in Chevron being overturned.

I think a lot of conservatives would sign up for that. A job well done, Mr. Chief Justice, and best of luck this term and for the remaining tenure as Chief Justice. You’ve been listening to Unwritten Law. As we like to say here at NCLA, let judges judge, let legislators legislate, and stop bureaucrats from doing either.

[End of Audio]

Duration: 20 minutes