If there’s one case US Supreme Court chief justice John Roberts doesn’t want to preside over, it’s the impeachment trial of president Donald Trump in the Senate.
But if the inquiry into Trump’s Ukraine dealings leads Congress to impeach, the constitution will require the chief justice to preside over the proceedings, however distasteful it may be to him. There’s reason to believe it would be very unpalatable to Roberts.
A panel of legal writers, law professors and practitioners at a Federalist Society event in Washington, DC on Oct. 2 agreed that the chief justice will not relish the prospect of presiding over something that would, by its very nature, be a political trial. The nine-member court, which begins its next term on Oct. 7, has a 5-4 conservative majority.
Roberts has made it a point to present the high court as nonpartisan and apolitical even though Trump suggests otherwise. To officiate at a polarizing, high-profile impeachment trial could undermine Roberts’ continuing, if arguably unsuccessful, efforts to convince Americans that judges are not politicians.
Based on his rhetoric and recent record in court, Roberts will want to avoid seeming partisan, said Amy Howe of SCOTUS Blog. Last term, he split the difference between conservatives and liberal justices in some controversial cases and became the swing vote. For example, he joined the liberals and held against the government in a census case, writing the majority opinion that incensed Trump. Roberts also wrote the majority opinion in a decision about partisan gerrymandering that was split on ideological lines, and in which he was joined by fellow conservatives Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
Still, it won’t be easy for Roberts to maintain his balance on the ideological tightrope if thrust into the impeachment case.
Impeaching the president
The US Constitution provides the Senate with the sole power to try impeachment, and two-thirds of members present must approve of conviction. It requires the chief justice to preside when a president is on trial. The reasoning behind these requirements is that the constitution’s framers saw senators as more high-minded than rough and tumble congressional representatives. And a decision so important couldn’t be entrusted to a numerically small body—like the Supreme Court, say.
Or, as Alexander Hamilton put it in the Federalist No. 65 in 1788, “[t]he awful discretion which a court of impeachments must necessarily have to doom to honor or infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons.”
The chief justice handles a presidential impeachment trial because it wouldn’t do to have the vice president, who routinely presides over the senate, play that role. After all, the vice president is next in line for the top job, and shouldn’t have to be the judge while his boss is on trial. But because it would be unseemly to have just anyone handle a matter of such gravity, it falls to the most powerful judge in the land. So, if Trump is put on trial, Roberts will have his work cut out for him.
There’s been some discussion that Senate majority leader Mitch McConnell would move to dismiss a Trump impeachment with no trial. It’s happened before, back in 1797 after the first impeachment proceedings in the House. Representatives impeached Senator William Blount and presented the Senate with articles of impeachment to try but the senators expelled Blount from his post the next day. Thus, the senator shirked trial by arguing it couldn’t proceed as he was no longer in office, and that there was no need for removal. The impeachment resolution was dismissed, and this has since been seen as support for the claim that senators can move to dismiss impeachment before trial.
As Duke Law School professor and former acting solicitor general Walter Dellinger told Slate, a motion to dismiss could be made, and if carried by a majority vote, end the matter in the Senate. Still, the chief justice would call the question. “[W]ith the chief justice in the chair, I am not at all confident that the majority leader of the Senate can successfully make this go away without having at least an initial vote,” Dellinger said.
Bracing for conflict
If the impeachment inquiry into Trump ultimately leads to the House presenting articles of impeachment for the Senate to try, it will likely be the most controversial case on Roberts’ busy docket. A long list of contentious cases are before the court. The upcoming term will see a fight over the definition of sex in civil rights, a gun law showdown, and the fate of Dreamers, people who were brought to the US illegally as children and have since built lives in the country. The Supreme Court will also address the question of the separation of church and state, and religious freedom considerations. And that’s just to name some of the most testing issues coming up in Roberts’ court.
“Some thought that the court was was ‘slow walking’ controversial issues last term,” Washington Post Supreme Court reporter Robert Barnes told the Federalist Society audience yesterday. He noted that all of the justices seemed to be taking pains to reach unexpected agreements and compromises, and form unpredictable alliances, perhaps in response to the “trauma” of the Brett Kavanaugh confirmation process.
But this year holds the prospect of another political trauma, and all eyes will be on Roberts. “Harmony could be harder to find this year,” Barnes predicted.