John Roberts’s self-defeating attempt to make the court appear nonpolitical

“The highest art is artlessness,” observed Francis Alexander Durivage, a now largely forgotten 19th-century American author: The appearance of acting naturally, without calculation, wins trust and admiration. In contrast, strategic behavior flagrantly intended to advance an agenda often creates public suspicion — which may undermine the aims for which the strategy is undertaken.

Chief Justice John G. Roberts Jr. might consider the Durivage Principle. In a number of important cases in recent years, observers on both left and right have concluded that Roberts has engaged in strategic maneuvering: His goal appears to be to preserve what he takes to be the legitimacy of the Supreme Court, by disproving any suspicion that the justices vote ideologically or otherwise engage in political behavior.

Yet because it is so clear that he is crafting opinions with this end in mind, the chief justice defeats his own aims. Roberts famously said at his confirmation hearing that the role of the justices is just to “call balls and strikes.” No one thinks that is an apt description of his judging. By striving so conspicuously to depoliticize the Supreme Court, he has brought about the very thing he hoped to prevent: No one has done more to politicize the court than the chief justice.