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Keeping up with impeachment and SCOTUS chief John Roberts

John Roberts in collaged shots heading to Senate impeachment trial.
Reuters
Determinedly dutiful.
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Washington DC

It isn’t easy being John Roberts, chief justice of the US Supreme Court. And it was especially tough yesterday, when he had to preside over a contentious presidential impeachment trial in the Senate, following hearings on two cases at his usual location across the street.

Yet Roberts seemed to start in high spirits, handling the high court’s morning administration extra graciously, as if practicing for the long hours of purely tedious magisterial duties ahead at the Senate. He welcomed each lawyer being sworn in—a ceremony that takes place at the start of arguments—with more oomph than usual, his smiles determined, greetings a little extra emphatic.

The chief may have been playing to the justified sense that—in this context, with the impeachment trial high on people’s minds—subtext would be a subject and he an object of curiosity.

Roberts had to suspect his every move would be read for signs of dread. The chief promotes a nonpartisan judiciary and wants the public to see the courts as apolitical. So sitting in on a fight between Democrats and Republicans over president Donald Trump’s alleged constitutional  violations is widely presumed to be his nightmare. It puts Roberts in the thick of politics when he wants to appear above the fray.

If the busy jurist thought he was being watched especially closely, he was right. Reporters who normally ignore the high court showed up at morning hearings to get a read on the chief’s mood ahead of impeachment proceedings. It was good timing because the first case was a Florida criminal matter discussing state of mind. But it was a rough assignment because Roberts is restrained even at his most effusive.

Chief justice John Robots

Roberts is not a bot, though you could get that impression if you only saw the later Senate trial broadcast. There, he ably fulfilled his ceremonial role, uttering only short procedural formulations like “the motion is tabled” or “the clerk will report” between the dueling parties’ extensive arguments. Roberts was following the William Rehnquist model, offered at the 1999 Clinton impeachment trial, of “[doing] nothing in particular and [doing] it very well.”

But at the Supreme Court where cameras are still barred, among his fellow justices, the chief plays a far deeper behind-the-scenes role and a much livelier one at hearings. During oral arguments, his face and speech regularly betray shades of boredom, humorcontrariness, wit, and irritation, and Roberts offered his full range before noon yesterday.

He was fairly reticent during the first case, maybe because he had other things on his mind—or, more likely, because the chief had trouble getting his questions in edgewise. Fellow justices peppering attorneys with questions talked over Roberts’ attempts to interject.

But during the second case about arbitration clauses and international law, the chief was immediately vocal. Roberts challenged the “radical” proposition that a subcontractor is indirectly bound to arbitration even if they didn’t sign an agreement. Incredulously, he told the arguing attorney, “I thought it was one of the central propositions of our arbitration precedents that arbitration is based on agreement.”

Signaling awareness of the fact that his statements are read like fortunes, Roberts jokingly added, “Not to suggest I have a view either way.”

The courtroom erupted in laughter. Comic relief was short-lived, however.

By the hearing’s end, justice Stephen Breyer’s extended dance remix style of hypothetical questioning was clearly wearing on his boss. Roberts alternated between holding his head in his hands and staring pointedly at Breyer as the time ticked toward noon and impeachment proceedings loomed.

Traveling in style

Roberts got a ride across the street. The Senate started trial at 1:00pm There, he took up his duties, dreaded or otherwise, recognizing various speakers and procedures as outlined in the governing body’s rules.

It had to be a difficult experience for the chief, substantively, apart from the scheduling strain. There was a lot of law talk from all. Yet Roberts’ thoughts were not wanted, solicited, or offered, even if every subject was right up the chief justice’s alley, not least the presentations on Supreme Court precedent.

House trial managers and the president’s counsel both cited the 1973 case Nixon v. US, in which the justices unanimously agreed the president had to turn over subpoenaed evidence. That decision prompted Nixon’s resignation and works better for prosecutors seeking records now than for Trump. But the defense raised the case for its discussion of presidential privilege by the defense.

No one arguing for either side could possibly have been as steeped in the issues as Roberts, though, or better equipped to interpret the ruling. But of course the chief justice isn’t called on to illuminate the law.

Roberts’ role in the impeachment trial is explicitly shallow. He has no real say in anything that happens because a majority of senators can always overrule him even if he did try to decide something or take a stand of some kind (which he won’t).

The chief justice must have thoughts on impeachment, including about the harrowing hours he’ll be keeping however long the proceedings end up lasting. But any inclination to share will be “tabled,” to put it in the procedural parlance of the very long day that was, which dragged on and on beyond midnight.

Roberts will likely keep on keeping his own counsel when it comes to the Senate trial and leave it to others to interpret his statements and silences. And we’ll soon have a chance to do so, assuming the chief justice doesn’t need much sleep and won’t skip a major hearing. The Supreme Court is holding oral arguments in a much-anticipated case about separation of church and state this morning.

Senate impeachment proceedings resume in the afternoon.

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