Supreme Court Chief Justice John Roberts is about to have his political close-up and it will define how he and his court are viewed in history.
Roberts actually is about to have two political close-ups. The first is that the Supreme Court on Dec. 13 announced it will decide whether President Donald Trump must release his tax records to Congress and prosecutors. Second, as required by the Constitution, the chief justice will preside over the president’s impeachment trial in the Senate. His performance in both will test his independence and that of the court, asking whether both will be seen as fair and impartial or partisan and favoring the president.
Roberts worries both about the legacy of himself and the court and the perception of it as a political institution. But he is caught in a dilemma. He is a Republican-appointed conservative whose court already has struck down most campaign finance laws, trimmed back voting rights, refused to address the issue of partisan gerrymanders, and limited President Barack Obama’s appointment power. He wrote the opinion upholding Trump’s Muslim travel ban, claiming it was not discriminatory by choosing to ignore the president’s racially charged rhetoric.
Yet with the appointment of Justices Brett Kavanaugh and Neil Gorsuch by Trump, Roberts is the swing vote on a court deadlocked 4-4 between Republican-appointed conservatives and Democratic-appointed liberals. He is forced into the swing justice role occupied formerly by both Sandra Day O’Connor and Anthony Kennedy.
Roberts wants to maintain the appearance of judicial neutrality and independence. During the height of the Brett Kavanaugh hearings and later when Trump said that that “Obama judges” were ruling against him, the chief justice defended the court’s judicial and political independence.
Roberts via the Supreme Court’s Public Information Office declared “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
The chief justice’s strategy has been to avoid direct appearances of partisan bias on his or the court’s part while still issuing opinions that favor conservative Republican positions.
All that finesse is about to end. In taking Trump’s tax cases he forces the court to side with either Congress or the President at a time when such a decision could impact Trump’s future. Twice previously when Congress and the president were locked in controversies that involved impeachment, the Supreme Court in United States v. Nixon and then in Clinton v. Jones issued unanimous opinions that limited presidential power and played critical roles in impeachment proceedings. No doubt Roberts must be cognizant of these cases and the ability of the then chief justices to forge a single voice for the court. How Roberts will navigate to produce a similarly unified court that does not appear to favor the president will be a challenge. Will he, with a divided court, be willing to cast the decisive fifth vote to compel presidential disclosure?
Similarly, what role will Roberts assume as he presides over Trump’s Senate impeachment trial? How will he approach the Democratic Party House managers who will prosecute the impeachment in the Senate? Will he restrain the Senate Republicans? Will he allow or disallow some evidence harmful to the president? His solo appearance too will be compared to former Chief Justice William Rehnquist who presided over the Clinton impeachment trial.
Roberts no doubt must be aware of how he will be judged alone in the Senate trial and in the tax cases will speak to how he and the court are viewed in history. Casting a decisive vote against presidential tax records disclosure and presiding over a Senate acquittal will cement an image of him as being a Trump or Bush judge, thereby conceding the very neutrality that Roberts has sought to cultivate and involving a president that he appears to dislike. But if he rules against the president and given the public disagreements he has had with him it will look like his decisions were the product of personal animus.
David Schultz is a professor of political science and legal studies at Hamline University.