Although the three branches of the US government were designed to be equal, the structure of the Constitution tells us something about the relative power of each branch as envisioned by the framers.
Article I establishes the legislative power. Article II establishes the executive power. And Article III establishes the federal judiciary. It is true that the branches share powers and responsibilities. But it’s also true that the framers trusted Congress — the representative branch — with far more authority than the president or the Supreme Court.
Congress makes laws. Congress spends money. Congress approves the president’s cabinet and says whether or not he can appoint a judge. Congress structures the judiciary, and Congress determines the size of the Supreme Court and the scope of its activities.
The upshot of all of this is that when Congress calls, the other branches are expected to respond — not out of courtesy, but as an affirmation of the rules of the American constitutional order. The modern Congress may be weak, and the presidency, against the editors’ expectations, could be the center of American political life, but it’s still newsworthy when a member of the executive says he will not meet the legislature.
Chief Justice John Roberts belongs to a different branch of government, the judiciary. But he — a constitutional officer confirmed to his seat by the Senate — is still subject to the power of Congress to question and investigate his conduct. When Congress calls, it too must answer.
Last week, Congress called the chief justice. Following revelations about the friendship between Judge Clarence Thomas and billionaire Republican donor Harlan Crow, Senate Judiciary Committee Chairman Senator Dick Durbin of Illinois has invited Roberts to testify at an upcoming Supreme Court ethics hearing.
“There has been a steady stream of revelations about judges failing to meet the ethical standards expected of other federal judges and, indeed, public servants in general,” Durbin wrote in his letter to the chief justice. “These issues were already apparent in 2011, and the court’s failure to address them for a decade has contributed to a crisis of public confidence.
“The time has come for a new public conversation about ways to rebuild trust in the Court’s ethical standards,” Durbin continued. “I invite you to join him, and I eagerly await your response.”
This week, Roberts responded. He said, in a nutshell, no.
“I must respectfully decline your invitation,” Roberts wrote. “Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is extremely rare, as one would expect given concerns about the separation of powers and the importance of preserving judicial independence. .”
This deceptively polite answer seems reasonable as long as you manage to overlook the fact that it is questions about the ethical conduct of the court and its members that have compromised the independence of the court. Was Thomas influenced by the largesse of his billionaire benefactor? Was Judge Samuel Alito swayed by an explicit campaign to curry favor with conservative judges? Was Judge Neil Gorsuch swayed by the lucrative sale of Colorado property, following his confirmation, to the head of a powerful law firm with many cases before the court?
It was with real gall, in other words, that Roberts claimed judicial independence in order to circumvent a judicial independence inquiry.
More striking than this evasion is how Roberts ended his response. Facing serious questions about the court’s integrity, he pointed to a non-binding ethics document that did next to nothing to prevent these situations from happening in the first place. “With regard to the Court’s approach to ethics,” he wrote, “I have attached a statement of ethical principles and practices to which all current members of the Court subscribe. supreme”.
Roberts did not write an aggressive or confrontational letter. And yet, he quietly makes an aggressive and confrontational claim to his own power and authority and that of the court. The “separation of powers,” according to Roberts, means that the court is outside the system of checks and balances that govern the other branches of government. “Judicial independence,” likewise, means that neither he nor any other member of the court has an obligation to speak to Congress about their behavior. The court verifies, according to Roberts, but cannot be verified.
A number of jurists have pointed to the judicial seizure of power in recent years, in which the courts of the federal judiciary seized key government decisions from the legislative and executive branches and disparaged the ability of elected officials to , as Josh Chafetz of Georgetown University Law Center writes, “commit to competent, principled governance.”
As one of the architects of this development in American policy, Roberts essentially uses this letter to impress upon Congress the reality of the situation: I won’t talk, and you can’t force me. And he’s right, not because Congress doesn’t have the power, but because it doesn’t have the votes. In the absence of a majority of votes, the Judiciary Committee of the Senate cannot subpoena a judge to appear. In the absence of 218 votes, the Chamber cannot remove a judge. And in the absence of 67 votes, the Senate cannot impeach a judge.
There are steps Congress could take to discipline the court — cut its budget, reduce the scope of its role, impose ethics rules on its own, even make it a 19th-century “driving circuit” — but these require a majority in the House and a supermajority in the Senate due to the filibuster, as well as a consensus among lawmakers (and specifically Democrats) to follow through if they ever have the chance to do it.
It’s not particularly dramatic, but this exchange with Chief Justice Roberts about the court, its ethics and its accountability to the public and its representatives did more than almost anything else in recent memory to illustrate a key reality of American politics at the moment: that our Supreme Court does not exist in the constitutional order so much as it overlooks it, a court in the robes of so-called philosopher kings, answerable only to them- same.