And Now Over to You, John Roberts

The chief justice has as his task to preside over the senate trial ahead. But his role is a limited one, and he should be able to manage it easily without putting his or the Court’s legitimacy at risk.

Jane Chong ,
The Atlantic

December 19, 2019

By Jane Chong

Former law clerk on the U.S. Court of Appeals for the Third Circuit

The Atlantic

Now that President Donald Trump has been impeached, the nation’s attention will soon turn to Chief Justice John Roberts, who is constitutionally obliged to preside over the forthcoming Senate trial. This may seem like an impossibly difficult task: How will he respond to potential Republican efforts to truncate the proceedings with a premature vote? And more challenging still, at a time when the Supreme Court stands accused of politicization and ideological polarization, how will he resolve contentious disputes without putting his own neutrality, and that of the judiciary, in question?

For answers, the country doesn’t have to look further than the hands-off approach perfected by Roberts’s predecessor, Chief Justice William Rehnquist, who rightly recognized that the Senate—not the chief justice—commands the proceedings. The senators themselves will determine just how hard or easy Roberts’s job will be, but as Rehnquist demonstrated, the Senate’s rules and historically heavy reliance on its own past practices prevent it from forcing a skillful presider into an uncomfortable corner.

To be sure, Rehnquist was uniquely suited to preside over President Bill Clinton’s impeachment trial. The respect he commanded from the Senate flowed in part from the fact that he happened to be an impeachment expert: Years before Clinton’s impeachment trial, Rehnquist, an amateur historian, published a well-received book detailing the impeachments and acquittals of Supreme Court Justice Samuel Chase and President Andrew Johnson. The Senate was aware of Rehnquist’s authority on the process—its solemn objectives and potential pitfalls—as well as his views on the importance of those acquittals. In Rehnquist’s assessment, the conviction of Chase or Johnson would have upset the checks and balances established by the Constitution, undermining judicial review (in the case of Chase) and executive authority (in the case of Johnson) and moving the nation closer to a regime of congressional supremacy.

Roberts does not have similarly articulated views on the subject. But the suggestion that he will do anything to inject himself into the political fray or serve as the ultimate decider on key issues not clearly addressed by the Senate rules or precedents requires ignoring his well-established commitment to judicial nonpartisanship and sensitivity to respecting the powers and competencies of the various branches. The suggestion also reflects, at best, confusion over his duties as the official presider.

One popular analogy for understanding the Senate phase of the proceedings is a standard civil or criminal trial, in which the chief justice plays the role of judge while the senators act as the jury. It’s an appealing analogy, but also a very bad one. Judges decide law, and juries assess facts. In an impeachment trial, by contrast, the senators will make virtually all the important legal determinations as well as the factual ones. The Senate’s function in deciding the legal issues is no small point, given that facts have not been the primary point of disagreement in any past presidential impeachments. The disagreements have been largely over the legal significance of those facts.

Thus, the Senate is, as Alexander Hamilton put it in “Federalist No. 65,” the court—the whole court. During Clinton’s impeachment trial, when a senator formally objected to the House managers’ repeated references to the senators as “jurors,” Rehnquist agreed and directed counsel to cut it out: “The Senate is not simply a jury; it is a court in this case.” And so it was. The senators decided the appropriate burden of proof, the applicable rules of evidence, and—of course—the standard for what constitutes an impeachable offense. They also decided key procedural issues, such as whether there was any need for live testimony (they concluded there wasn’t), and whether it was appropriate to stick to closed-door deliberations on major issues (they concluded it was).

Roberts, should he follow Rehnquist’s lead, will serve not as the judge but as the presiding officer. There is a script for that. He will read the senators’ written questions. He will recognize speakers. He will call the Senate to order; he will call recesses; he will adjourn. Like Rehnquist, he may occasionally get up to stretch his back, but probably only after politely advising the chamber that this is not intended to disrupt the proceedings. On issues minor and major, he will rely heavily on the Senate parliamentarian, Elizabeth MacDonough (the first woman ever in the role), who will serve as a living encyclopedia of Senate rules and conventions—in other words, supply in real time the information required to facilitate recognition of and deference to Senate precedents, and in this way establish some neutral baselines. In a 1978 interview, Floyd Riddick, who served as Senate parliamentarian during preparations for the planned impeachment of President Richard Nixon, explained the point simply: “Generally speaking, I think [the chief justice] would find, just like the senators find, that it’s better to follow the practices and precedents of the Senate which are told [to] him by a nonpolitical person, rather than to go out on a limb on his own … and get overruled by the Senate.”

That’s not to say Roberts will make no important decisions, or that in these complex, highly formalistic proceedings, there won’t be material points of procedure that invite scrutiny from lawmakers and the nation. But his role will be limited by constitutional design. Under Article I, Section 2, the Senate has “the sole Power to try all Impeachments,” and the Senate impeachment rules reflect this mandate. Those rules are subject to revision by a Senate majority, but in the century and a half since the very first presidential impeachment, that of President Johnson, they have undergone only minor updates and will likely prove sticky. The same rule that allows the chief justice to rule on evidence and objections also says that he can refer these matters for determination by the Senate. Rehnquist made referrals, and when he decided to rule, it was with the common sense and savvy that came of understanding he could be instantly overruled by a simple majority vote. (The majority’s ability to overturn the presiding officer is not unique to the impeachment process, but an ordinary point of procedure incorporated from the Senate’s standing rules.)

The country should be less concerned about anything the chief justice is likely to do and more concerned about how fairly his decisions will be portrayed by commentators eager to wring political significance from his every word and action. This is a point worth considering because historically, this commentary has ventured into the absurd. For instance, the Trump supporter and radio personality John Cardillo has made waves for arguing that Chief Justice Roberts should recuse himself from presiding over a Trump impeachment trial. Why? Because in 2018 Roberts asserted the independence of the judiciary after Trump publicly criticized “an Obama judge” who issued an order preventing the administration’s asylum policy from going into immediate effect. In response, Roberts issued a rare statement: “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 idea that Roberts compromised his judicial neutrality by asserting judicial neutrality is not a serious proposition to anyone familiar with 28 U.S.C § 455 or the code of conduct for United States judges (which does not bind Supreme Court Justices, but which they all consult for guidance). That the recusal proposal has received any airtime at all is itself an outgrowth of the political gloss that was applied to Roberts’s statement back when he made it. At the time, observers insisted, some gleefully and some disapprovingly, that the statement was a “rebuke” of Trump. This characterization says a great deal about the country’s growing cultural tendency to breathlessly examine the federal judiciary through the prism of personal entanglement, rather than constitutional obligations and institutional competencies. The proposition that there was anything improper about the chief justice’s affirmation of the federal judiciary’s independence ignored the fact that he is the face of a professional workforce and co-equal branch of government whose legitimacy turns on principles of impartiality that were challenged by the president of the United States.

America has few precedents for presidential impeachment, and none for presidential conviction and removal. The public rightly finds the idea of politicians charging and trying anyone profoundly weird and disconcerting, and to make sense of how this is supposed to work, to understand the saga that is about to unfold, people will naturally grasp for metaphors and models. They want a framework to consult as they read the news and watch the televised proceedings. They want a factual basis for discerning when their representatives are conducting themselves thoughtfully and in adherence to their oath of office, or throwing down like prizefighters in a hopeless partisan melee.

As the country searches for something solid and dispassionate in the midst of political spectacle, it will benefit, on balance, from seeing the chief justice presiding. Not because he will serve as a judge, but because he won’t. Not because he will force any major rulings, or save the Senate from itself, but because he can’t. The question of removal lies in the hands of 100 people constitutionally assigned to answer it. It’s out of Roberts’s hands.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

NEXT STORY: Trump Becomes the Third President in U.S. History to Be Impeached

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