WASHINGTON – John Roberts has a problem with politics. Actually, lots of problems.
The chief justice of the United States finds it “troubling” that he and his Supreme Court colleagues are forced to sit dispassionately in the front row when presidents deliver State of the Union speeches resembling “pep rallies” before joint sessions of Congress.
He is uncomfortable deciding cases that can be viewed as benefiting one political party over another, warning in 2017 that choosing sides on partisan gerrymandering would “cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.” Two years later, he took the court – indeed, all of the federal courts — out of that business altogether.
And when President Donald Trump in 2018 disparaged a lower court ruling on immigration as having been issued by an “Obama judge,” Roberts issued a rare rebuke.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said, calling the nation’s independent judiciary “something we should all be thankful for.”
That independent streak was on the line beginning Thursday, when Roberts was sworn in as presiding officer for the president’s Senate impeachment trial, promising to “do impartial justice according to the Constitution and the laws.” It’s a role that threatens double trouble for the buttoned-down chief justice, should he be seen as favoring one side or the other.
Will there be witnesses, and if so, which ones? Will documents be introduced into evidence? What happens if Republicans in the majority try to end the trial prematurely? What if Democrats want to issue subpoenas? Will Roberts bang his hour glass-shaped ivory gavel, issue substantive rulings, perhaps even break tie votes?
From all indications and predictions, the answer is: Not if he can help it.
“This is his most prominent chance on the national stage to show his commitment to being a fair, neutral arbiter,” says Jeffrey Rosen, president of the National Constitution Center in Philadelphia. “Chief Justice Roberts cares more than anything about the nonpartisan, institutional legitimacy of the courts.”
For the next several weeks, Roberts will hold down two of the most prominent and difficult jobs in America. The impeachment trial will consume his afternoons and, possibly, evenings. By morning, he will continue to help decide Supreme Court cases heard last fall, choose others to hear next spring, and preside over oral arguments.
That’s what he did Wednesday, a day before he would become only the third chief justice to preside over a presidential impeachment trial. He did it with characteristic aplomb, and even a bit of humor.
During an oral argument on the requirements for proving age bias in the federal workplace, Roberts – who turns 65 later this month – wondered if it would be discriminatory for a younger person doing the hiring to use the phrase, “OK, boomer.” For a distinctly old-fashioned court, it was a first.
National Security: ‘Deferential,’ with a gavel
At 2: 09 p.m. Thursday, after being driven across the street from the Supreme Court, Roberts was sworn in on the Senate floor and then delivered an oath to the senators who will sit in judgment of the 45th president.
It’s a role handed him by the Framers of the Constitution. Article I, Section 3 states: “When the President of the United States is tried, the Chief Justice shall preside.”
The trial will start in earnest on Tuesday – live on national television, which the Supreme Court consistently has spurned. For the next several weeks, attention will focus on the House Democrats named by Speaker Nancy Pelosi to prosecute the case and on Trump’s defense team. The 100 senators, by custom, sit mostly in silence.
As for Roberts’ role, words such as “impotence,” “powerlessness,” “deferential” and “meek” were cited by Frank Bowman, an impeachment expert at the University of Missouri School of Law, in a recent SCOTUSblog post. That’s because it’s a political trial, not a legal one, and the senators call the shots – including by overruling Roberts if they choose.
But as the process gets started, much remains to be sorted out, and the chief justice could become more assertive. Senate Democrats, with 47 seats, want witnesses such as former National Security Adviser John Bolton to appear. Majority Leader Mitch McConnell wants to avoid that, but he may lose three or more of the 53 GOP senators.
“If he wants to play a more active role, there will be ways for him to do so,” predicts Michael Les Benedict, professor emeritus of history at Ohio State University and author of The Impeachment and Trial of Andrew Johnson.“He will see that the court’s reputation is involved here, that the court is already under attack for having become too political and too deferential to the president, and now this is up to him personally.”
Even if he doesn’t make substantive rulings or break tie votes, Roberts’ desire for comity and decorum could lead him to make ample use of his gavel.
“What he’s got at stake here is his reputation … to ensure that this whole process is respectable,” says Michael Gerhardt, a constitutional law professor at the University of North Carolina School of Law. “That may motivate him to get involved if he thinks things are getting off the rails.”
What Roberts is less likely to do is seek out attention or be baited into speaking out. He has declined media interviews on his upcoming role. And if – more likely, when – Trump bemoans the process in 280-character tweets, don’t look for Roberts to respond.
“I don’t think that Roberts reads Twitter accounts,” says Walter Dellinger, a former U.S. acting solicitor general and professor emeritus at Duke University School of Law.
National Security: ‘Setting a good example’
If he’s looking for role models, Roberts has but two to choose from.
When Andrew Johnson, the nation’s 17th president, was impeached in 1868, the task of presiding over the Senate trial went to Chief Justice Salmon Chase. A former senator, governor, Treasury secretary and presidential candidate, Chase favored Johnson’s acquittal. He ruled often from the presiding officer’s chair and was overruled at least twice.
Chase was “very much unlike John Roberts,” says Brenda Wineapple, a biographer and author of The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation. “We would all be bowled over if word got out that John Roberts wanted to run for president.”
When Bill Clinton, the nation’s 42nd president, was impeached 130 years later, Chief Justice William Rehnquist – for whom Roberts had served as a law clerk – presided. He issued only one important ruling, declaring that senators should not be referred to as “jurors” because “the Senate is not simply a jury. It is the court in this case.”
Looking back on the five-week trial years later, Rehnquist remarked: “I did nothing in particular, and I did it very well.”
Rehnquist, not Chase, will be Roberts’ role model, impeachment experts agree.
“He doesn’t want to imperil any of the credibility of the Supreme Court,” says David Stewart, author of Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy. Unlike Chase, Stewart says, Roberts “doesn’t have a dog in this fight.”
What Roberts does have is a heavy caseload at the high court. Cases on gay rights, gun rights and the DACA program that allows some 700,000 young, undocumented immigrants to live and work in the United States are in the process of being decided.
A major case on public aid for religious schools comes up Wednesday. Abortion will be on the docket in early March. Subpoenas seeking Trump’s tax returns and financial documents will get a hearing this spring.
Roberts no doubt had his dual jobs in mind on New Year’s Eve, when he issued his year-end report on the federal judiciary.
“As the new year begins, and we turn to the tasks before us, we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law,” he wrote.
Taking the impeachment trial oath Thursday, the chief justice likely had a sense of history on his mind – past and future.
“He knows that 100 years from now, people will be saying, ‘What did Roberts do?'” Gerhardt says. “He’s going to be concerned with setting a good example.”
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