John Roberts, Chief Justice of the Supreme Court of the United States, spoke recently at a synagogue in New York City. He explained that the courts are supposed to apply the law in a way that avoids even the appearance of partisanship.
He will likely soon face a serious test of his commitment to this principle.
He is right, of course. Application of the law should show no party preference at all. Roberts has to worry about the perception that decisions of the Supreme Court favor one Party over the others perhaps more than any other Chief Justice in the history of the republic, mostly because of his own Party, the Republicans. Since the glory days of Newt Gingrich throwing partisan bombs every which way in the 1990s, culminating in the hyper partisan impeachment of Bill Clinton, ending the decade with the highly partisan decision in Bush v. Gore, Republicans have made their own partisan advantage the sole test for every act.
The presidency of Donald Trump is just the logical outcome of Republican hyper partisanship. Once he began to succeed as a Republican candidate for president, no one else in the Party could stop him because doing so would risk losing the support of the Republican base, whom Republican officials since Nixon have fed a steady diet of dog whistle racism to keep them wedded to irresponsible policies that harmed most of the rank and file in favor of large corporations and billionaires.
Republicans have played on the racist trope that the big, bad federal government, under the control of “the liberal elite,” does nothing but take the money of hard working white people to give it to lazy black people. In Trump’s telling of this sick story, the villains were Mexicans and Muslims instead of African Americans, and the complaint was stealing jobs, but the basic story was the same.
So now Republicans are stuck with an obviously criminal president who well deserves impeachment and who compounds his crimes daily by refusing to comply with any subpoenas from the House of Representatives. There is already a case before the Court of Appeals for the D.C. Circuit that has the potential to present to the Supreme Court what is, going in, a highly partisan question of whether Trump’s former accounting firm must comply with a subpoena from the House of Representatives seeking Trump’s tax return information.
Given how bloody minded Republicans are, and how stupid Trump and his toadies are, they will likely appeal to the Supreme Court if they lose in the Appeals Court. The Supreme Court gets to choose which cases it hears, so they could just refuse to hear the case and let the decision of the Appeals Court stand, but the Supreme Court typically takes cases involving disputes between the other two branches of government because they get directly to very basic questions of how government should operate under our Constitution.
Roberts will be in a bind. He has mostly been a loyal Republican. That’s how he got his present job, from President George W. Bush.
But Trump’s legal position is really weak. On the question in the Court of Appeals, he has to argue in effect that Congress lacks the power to investigate, which is preposterous. The Supreme Court has held that Congress may investigate on any topic it can legislate on, which is nearly anything, except those topics, such as the list in the First Amendment (“Congress shall make no law…”) that the Constitution expressly forbids it to legislate on.
Then the Trumpsters, on lots of other ongoing disputes with the House of Representatives, have asserted a roving executive privilege against the subpoena power of the House that looks set fair to give Trump the unlimited power he foolishly thinks he already has.
Presumably, Roberts is an institutionalist, which is as close as anyone can get to being a real conservative under the distinctively liberal U.S. Constitution. Except for having some highly idiosyncratic theory in his head, it is hard to imagine how anyone could serve as Chief Justice of the Supreme Court without being an institutionalist, since the Supreme Court is the pinnacle institution in the institution that is the federal government, and the Chief Justice presides over it.
Trump, channeling Steve Bannon, is an anti institutionalist, the bizarre specter of a real estate magnate who has zero understanding of law or rules at all. He has demonstrated repeatedly that he has no understanding of what a constitution is, why anyone would have one, or what our Constitution says about the distinctly limited power of the federal government and all who serve in it. This is bad enough for a grossly unqualified president who had zero experience in government before taking office. It is profoundly humiliating, or should be, that otherwise seemingly intelligent, experienced people who choose to work for this grossly unqualified president would abet his staggering ignorance and stupidity by trying to make it look consistent with our Constitution, now over 200 years old.
Roberts may soon have to choose between his commitment to the institutions of the federal government as our Constitution defines it and the idiotic pseudo anarchy of the Republican Party on Trumpmeth.
To side with the Constitution under the circumstances does not require one to be conservative. It only requires one to be sane.
Roberts is now the swing vote between the liberal and “conservative” blocs on the Supreme Court. Given a dispute between Trump and the House of Representatives, all institutionalists should take the side of the House, as the institutional party, and the liberals should vote against the idiotic Republican, so called president.
But such are “conservatives” in the United States, and such is the hyper partisanship of Republicans, that the Republican appointees may well vote with the Republican president regardless. Both Trump appointees should recuse themselves, but being good “conservatives,” they have no sense of ethics or propriety, so they likely will not.
Thus is it quite likely that Roberts will play the swing between the liberal and “conservative” blocs.
It will be a very important opportunity for him to show a commitment by the Court to the rule of law, which Trump and his toadies flout with nearly their every action, against the hyper partisanship of the Republican Party.
Will Roberts vote as the Chief Justice, or as a Republican?