WASHINGTON – For two branches of the federal government already held in low esteem, the Senate impeachment trial that wrapped up Wednesday likely won’t raise the ratings of President Donald Trump or Congress.
But Chief Justice John Roberts emerged from three weeks as the trial’s presiding officer with his reputation intact and, therefore, the Supreme Court’s as well.
It’s a good thing, because the court is the only branch of government viewed favorably by a majority of Americans. A Marquette Law School poll in October found 57% of those surveyed trusted the Supreme Court the most, compared to 22% for Congress and 21% for the president.
That level of trust will be needed as Roberts, 65, returns to his chambers across the street from the Capitol for what promises to be a highly contentious second half of the court’s 2019 term.
The justices face cases on abortion, immigration, religion, gay rights and gun rights. They also must decide if Trump can keep his tax returns and financial records away from prosecutors and investigators.
In the wake of this week’s messy Iowa Democratic caucuses, partisan State of the Union address and Trump’s acquittal in the Senate, Roberts and his eight colleagues would do best to appear impartial and above the fray when they hear and decide those cases.
That’s what the chief justice sought to do during the three-week impeachment trial. He briefly reprimanded House prosecutors and Trump’s lawyers for their language. He refused to read Sen. Rand Paul’s question naming a person who may have been the whistleblower regarding Trump’s dealings with Ukraine. He kept a firm hand on the clock, as he does at the Supreme Court.
And most importantly, he made it clear during a debate over issuing subpoenas for witnesses and documents that he would not vote to break a tie if the Senate deadlocked 50-50. That would have helped Democrats, but aiding the president wasn’t Roberts’ goal. Rather, it was an issue that comes before the court regularly: preserving the separation of powers.
“If the members of this body, elected by the people and accountable to them, divide equally on a motion, the normal rule is that the motion fails,” Roberts said. “I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed.”
His performance won applause from the Senate at the trial’s conclusion Wednesday. Majority Leader Mitch McConnell awarded him a “golden gavel” for presiding “with a clear head, steady hand and the forbearance that this rare occasion demands.”
In return, Roberts thanked senators and staff members for helping him carry out his “ill-defined responsibilities.” He invited senators to visit the court if they “might want to see an argument, or to escape one.”
Push and pull
As it turns out, none of the votes during the trial came out 50-50, in large part because of efforts by Democratic and Republicans senators to prod or shield Roberts.
As the chief justice was reading senators’ questions, Sen. Elizabeth Warren, D-Mass., a leading presidential candidate, sent him one implying that a trial without evidence would “contribute to the loss of legitimacy of the chief justice, the Supreme Court and the Constitution.”
Sen. Lisa Murkowski, R-Alaska, who voted against the subpoenas rather than produce a tie vote, later criticized what she called an attempt to “drag the Supreme Court into the fray, while attacking the chief justice.”
The push and pull convinced most analysts to predict that Roberts would do what he did: refuse to vote.
“Either way he goes, he’s assisting one side or the other,” said Neil Eggleston, former White House counsel to President Barack Obama.
Some on the left remained critical. Brian Fallon, former press secretary for Hillary Clinton’s 2016 presidential campaign and leader of the liberal advocacy group Demand Justice, said Roberts’ portrayal of a “potted plant” made him “complicit in Republicans’ sham proceeding.”
But had the chief justice threatened to intercede and vote, as the vice president is empowered to do when he presides over the Senate, it would have been seen as judicial activism – something Roberts and other legal conservatives disdain almost as much as politics.
Now Roberts returns full-time to the friendly confines of the Supreme Court, and not a moment too soon.
Decisions are pending in nearly three dozen cases, including those that could protect young immigrants from deportation, LGBT workers from discrimination, gun owners from travel limits and religious schools from government aid restrictions.
Oral arguments are scheduled in another 29 cases, including one that could allow states to impose new limits on abortion rights. On the last day of March, the justices will consider three cases in which Trump’s lawyers are seeking to shield his tax returns and financial records from Congress and New York prosecutors.
Everyone with a stake in the impeachment trial also has a stake in those cases. Democrats want to preserve Obama’s DACA program for some 700,000 young immigrants. Most Republicans want to tighten restrictions on abortion and loosen them on gun owners. Three Democrat-controlled House committees want the president’s tax and financial records. And Trump devoted a portion of Tuesday’s State of the Union address to promoting religious school choice.
Having extricated himself successfully from the Senate’s partisan atmosphere, Roberts may credibly claim that the court’s eventual decisions on those issues are not driven by politics.
Said Jeffrey Rosen, president of the National Constitution Center: “The impression that the chief justice makes will persist even after the trial is over.”