As Roberts enters fray, legacy of judicial independence at stake

Henry Gass

It is rare that John Roberts, the chief justice of the U.S. Supreme Court, speaks outside the courtroom. When he does make a public statement, he often talks about the same thing.

Take his year-end report, which included a familiar appeal to his fellow judges and comes ahead of a potentially landmark six months for both him and the high court.

“We should celebrate our strong and independent judiciary. ... But we should also remember that justice is not inevitable,” he wrote. “We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity, and dispatch.”

“We should each resolve,” he added, “to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under the law.”

That refrain will be under scrutiny as the chief justice swears in U.S. senators Thursday in the third impeachment trial in American history. The institutional integrity of the federal courts, and the Supreme Court in particular, has been a high priority for Chief Justice Roberts since his confirmation in 2005. He has worked, often successfully, to craft unanimity on the high court, and in recent years he has defended the judiciary’s independence from attacks by President Donald Trump.

He has also never had as much power on the high court as he does right now. Since Justice Anthony Kennedy’s retirement in June 2018 he has been the ideological center of the court, perhaps only the second chief justice to have ever been in such a position. He is often the deciding vote in politically divisive cases – and several of those cases await the chief justice in the coming months.

For an institutionalist like Chief Justice Roberts, the political storms ahead may be the most challenging period of his judicial career.

A man who famously declared that judges are like umpires who are supposed to “call balls and strikes” during his confirmation hearing will now have the opportunity – or the burden, depending on your perspective – to craft a strike zone that will have a tremendous significance for the country, the president, and public trust in the courts.

“He is already very cognizant of the somewhat precarious state of the judiciary currently,” says Amy Steigerwalt, a political science professor at Georgia State University.

“The court is on the precipice of [several divisive cases]. He’s standing in the middle of it ... and he will have to preside over an impeachment trial while this is all going on,” she adds. “There’s a lot there, and I think it’s going to be really difficult.”

Trial by fire?

After the 1999 impeachment trial of President Bill Clinton, then-Chief Justice William Rehnquist evaluated his own performance thus: “I did nothing in particular, and I did it very well.”

Chief Justice Roberts, who clerked for the Arizona justice two decades earlier, will likely be studying how his former boss handled the proceeding, as well as how former Chief Justice Salmon Chase handled the 1868 impeachment trial of President Andrew Johnson.

The Constitution mandates that the chief justice be sworn in to replace the vice president as “presiding officer” of the Senate during an impeachment trial. There are few other clearly codified rules, but one guarantee is that it will be the brightest spotlight Chief Justice Roberts has been under his entire career.

“I expect he’s not very happy about having to do this,” says Steven Schwinn, a professor at the University of Illinois, Chicago’s John Marshall Law School.

“It puts him potentially in the middle of this political firestorm, and he has actively avoided that kind of thing in his time on the bench,” he adds.

An impeachment trial is only a sort-of trial, and the presiding officer is only a sort-of judge. Any decision a presiding officer makes can be overruled by a majority vote of the Senate. The presiding officer can also refer rulings on motions, such as the calling of witnesses, to a Senate vote.

This gives a chief justice significant room to interpret the role as they wish. Rehnquist interpreted it as largely ceremonial, with his one ruling of consequence upholding an objection from a Democratic senator that senators not be referred to as “jurors.”

“The Senate is not simply a jury. It is a court in this case,” he said, in a ruling that could be a precedent his former clerk follows.

Chase was more proactive in the Johnson impeachment trial, handling the proceeding more as a normal trial and ruling on evidence- and witness-related motions, subject to Senate approval.

“My sense is Roberts will take his own path here,” says Timothy Huebner, a history professor at Rhodes College in Memphis, Tennessee. “He might actually see this as an opportunity for the court, and the entire constitutional system, to be elevated above partisan politics.”

Were he to play a more outsize role in the impeachment trial, Professor Huebner admits, the chief justice would have to walk “a very fine line.” His every move and word will be scrutinized through a partisan lens, and few things could damage public confidence in the Supreme Court as much as the perception that the chief justice has put a thumb on the scale of a president’s removal or acquittal.

This is particularly true in the social media age – and the age of the social media presidency.

During the House impeachment hearings, Mr. Trump sometimes provided explosive real-time reactions via social media. Similar reactions would be likely in a Senate trial, this time with the chief justice – whom Mr. Trump has criticized in the past – in the crosshairs.

While he did respond to Mr. Trump’s last attack on the judiciary, saying that “we do not have Obama judges or Trump judges,” the intense examination and interpretation of his actions that an impeachment trial will likely bring is why many experts believe the chief justice will keep a relatively low profile. Why should he rule on something significant, like witness testimony, that could ignite a public backlash when he could, with sound legal justification, refer it to the Senate?

“Whatever he could do to avoid that kind of a conflict he will be very interested in doing,” says Sara Benesh, a political scientist at the University of Wisconsin, Milwaukee.

That in turn could advance his goal of bolstering the image of the Supreme Court as an institution above the political fray.

“Being up on the dais and sort of in charge, and then being very apolitical – which is what I expect he’ll do – might enhance the public’s trust in the court,” adds Professor Benesh.

“Especially given the parameters of the impeachment trial,” she continues, “I’m not sure he could do anything” to harm the high court’s reputation.

A blockbuster term

After the impeachment trial, the Supreme Court’s reputation for impartiality will still have several more hurdles to clear.

Recent terms have been relatively sleepy, amid political controversy over the confirmation of two conservative Trump nominees, Justices Neil Gorsuch and Brett Kavanaugh. But the justices are now having to reckon with big issues and cases they had kept at arm’s length.

Last term, Chief Justice Roberts made headlines by voting with his four liberal colleagues to pause the implementation of a restrictive Louisiana abortion law while the justices decided whether to review an appeal against it.

Although the law – which requires abortion providers to have admitting privileges at a local hospital – is virtually identical to a Texas law the Supreme Court declared unconstitutional in 2016, a federal appeals court upheld it. The justices will review that decision, with oral arguments scheduled for early March. There is one key difference between the Louisiana case and its Texas predecessor: the two new justices who will help decide it. For the chief justice, that’s a problem.

“It raises that prospect that changes to a couple of members of the court can fundamentally change what is the ruling of the court,” says Professor Steigerwalt. “It puts into tension this idea that the court’s interpretation of the Constitution is free from the political whims.”

Louisiana is asking for the court to “narrow” and “limit” its ruling in the 2016 case, which held that regulating access to abortion must advance a valid purpose like protecting women’s health and safety. Chief Justice Roberts was one of three justices to dissent from that ruling, but when reviewing the Louisiana law he will likely take a more cautious approach.

“He has got to be thinking that [Texas] is a relatively recent decision, and that if the court is going to rule differently in the [Louisiana] case it’s got to have a really good, factually distinguishable reason,” says Professor Schwinn. “It may be tough to thread that needle.”

Later that month the court is expected to hear a case concerning President Trump. Unlike previous cases involving the Trump administration, such as the travel ban (which the court upheld) in 2018 and the census citizenship question (which the court struck down) last year, this trio of cases concerns the president as an individual – specifically, whether investigators in New York and in Congress can subpoena his personal financial records from a third party.

Mr. Trump’s personal lawyers are arguing the broad position that, as a sitting president, he should be immune from criminal investigation while in office. The U.S. Department of Justice has supported the president in an amicus brief, though making a narrower argument that while a sitting president isn’t immune from investigation, prosecutors should have to make a more compelling case.

“Whatever the court has to say on them will seem political,” says Professor Schwinn. “Legally I don’t think they’re hard.”

“They are politically charged to be sure,” he adds. But “in all these cases I think the authority is there to order the president to release his taxes.”

“Lip service” or action?

Chief Justice Roberts has been thinking about the institution of the Supreme Court for half of his life. He began arguing cases there in his 30s, and he has been chief justice for almost 15 years, but it is only recently that he has truly taken control of “the Roberts court.”

He has been a reliably conservative vote since he joined the high court. But now, sitting in the court’s ideological center, there is some evidence that he may, in certain cases, put the court’s institutional interests ahead of his own jurisprudential desires.

Last term – his first as the court’s “swing” justice – he wrote the court’s plurality opinion blocking the Trump administration’s effort to add a citizenship question to the 2020 census, a ruling that upset his conservative colleagues and the Trump administration.

That same day he also wrote the court’s opinion, joined by his four conservative colleagues, holding that federal judges cannot rule on claims of partisan gerrymandering, a ruling that delighted Republicans.

Parallel to that, however, he has continuously worked to build and safeguard institutional strength of the Supreme Court and the federal judiciary. His year-end report was the latest explicit example. The next six months will be the latest, and perhaps toughest, test of that institution under his leadership.

“The bottom line is the best predictor for his decision-making is his ideology,” says Professor Benesh. But “he’s definitely given a lot of lip service [to the idea] that the court ... has to fight against the notion that it’s not deciding cases impartially.”

“If he continually espouses those ideas and feels strongly about that,” she adds, “we have to think they will come into play when they’re relevant for him in his decision-making over the [rest] of the term.”
 

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