JAMELLE BOUIE
The Polite Disdain of John Roberts Finds a Target
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Although the three branches of the American government were designed to be coequal, the structure of the Constitution tells us something about the relative power of each branch, as envisioned by the framers.
Article I establishes the legislature. Article II establishes the executive branch. And Article III establishes the federal judiciary. It is true that the branches share powers and responsibilities. But it’s also true that the framers trusted Congress — the representative branch — with far more authority than it did the president or the Supreme Court.
Congress makes laws. Congress spends money. Congress approves the president’s cabinet and says whether he can appoint a judge or not. Congress structures the judiciary and Congress sets the size of the Supreme Court and the scope of its business.
The upshot of all of this is that when Congress calls, the other branches are supposed to answer — not as a courtesy, but as an affirmation of the rules of the American constitutional order. The modern Congress might be weak, and the presidency, against the expectations of the framers, might be the center of American political life, but it’s still newsworthy when a member of the executive branch says he or she won’t meet with the legislature.
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Chief Justice John Roberts is in a different branch of government, the judiciary. But he — a constitutional officer confirmed to his seat by the Senate — is still subject to the power of Congress to question and investigate his conduct. When Congress calls, he too should answer.
Last week, Congress called the chief justice. In the wake of revelations concerning the friendship between Justice Clarence Thomas and Harlan Crow, a billionaire Republican donor, the chairman of the Senate Judiciary Committee, Senator Dick Durbin of Illinois, invited Roberts to testify at an upcoming hearing on Supreme Court ethics rules.
“There has been a steady stream of revelations regarding justices falling short of the ethical standards expected of other federal judges and, indeed, of public servants generally,” Durbin wrote in his letter to the chief justice. “These problems were already apparent back in 2011, and the Court’s decade-long failure to address them has contributed to a crisis of public confidence.”
“The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards,” Durbin went on to say. “I invite you to join it, and I look forward to your response.”
This week Roberts answered. He said, in a word, no.
“I must respectfully decline your invitation,” Roberts wrote. “Testimony before the Senate Judiciary Committee by the chief justice of the United States is exceedingly rare as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”
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This deceptively polite reply sounds reasonable for as long as you can manage to forget the fact that it is questions about the ethical conduct of the court and its members that have compromised the independence of the court. Was Thomas influenced by the largess of his billionaire benefactor? Was Justice Samuel Alito influenced by an explicit campaign to curry favor with the conservative justices? Was Justice Neil Gorsuch influenced by the lucrative sale of a Colorado property, in the wake of his confirmation, to the head of a powerful law firm with ample business before the court?
It is with real chutzpah, in other words, that Roberts has claimed judicial independence in order to circumvent an investigation into judicial independence.
More striking than this evasion is the manner in which Roberts ended his reply. Faced with serious questions about the integrity of the court, he pointed to a nonbinding ethics document that has done almost nothing to prevent these situations from arising in the first place. “In regard to the Court’s approach to ethics matters,” he wrote, “I attached a Statement of Ethics Principles and Practices to which all of the current members of the Supreme Court subscribe.”
Roberts did not write an aggressive or confrontational letter. And yet, he is quietly making an aggressive and confrontational claim about his own power and authority and that of the court’s. “Separation of powers,” in Roberts’s view, means the court is outside the system of checks and balances that governs the other branches of government. “Judicial independence,” likewise, means neither he nor any other member of the court has any obligation to speak to Congress about their behavior. The court checks, according to Roberts, but cannot be checked.
A number of legal scholars have remarked on the judicial power grab of the past several years, in which courts across the federal judiciary have seized key governing decisions from the legislative and executive branches and disparaged the ability of elected officials to, as Josh Chafetz of Georgetown University Law Center writes, “engage in principled, competent governance.”
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As one of the architects of this development in American politics, Roberts is essentially using this letter to make plain to Congress the reality of the situation: I will not speak, and you cannot make me. And he’s right, not because Congress doesn’t have the power, but because it doesn’t have the votes. In the absence of a majority of votes, the Senate Judiciary Committee cannot subpoena a justice. In the absence of 218 votes, the House cannot impeach a justice. And in the absence of 67 votes, the Senate cannot remove a justice.
There are steps Congress could take to discipline the court — shrinking its budget, reducing the scope of its docket, imposing ethics rules itself, even making it “ride circuit” à la the 19th century — but those require a majority in the House and a supermajority in the Senate because of the filibuster, as well as a consensus among lawmakers (and specifically, Democrats) to follow through if they ever have the chance to do so.
It is not especially dramatic, but this exchange with Chief Justice Roberts over the court, its ethics and its responsibility to the public and its representatives has done more than almost anything else in recent memory to illustrate a key reality of American politics in this moment: that our Supreme Court does not exist in the constitutional order as much as it looms over it, a robed tribunal of self-styled philosopher-kings, accountable to no one but themselves."
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