LONELY AT THE TOP.
John Roberts belongs to a small fraternity. Only sixteen men have served as the confirmed Chief Justice of the Supreme Court of the United States. Currently, Roberts is the only person on the planet to truly know what it means to hold the job. I imagine, however, that on many days the Chief Justice experiences small pangs of worry; his job involves more than offering his own legal opinion. Instead, the Chief Justice must protect the reputation of the Court. I cannot help but think that late Friday afternoon John Robert exhaled just a bit.
In times of crisis, political leaders cement their legacy for better or worse. While the buck stops with the president, he (and someday she) enjoys the luxury of autonomous action. In many circumstances, the President does not ask anyone’s permission. At the opposite end of the spectrum, Congressional power disperses through 535 members of the House and Senate; their acts and omissions are by group.
The Chief Justice of the Supreme Court stands in the uncomfortable middle of those extremes. He cannot act without the consent of at least four colleagues. Yet, the Court’s reputation links directly to his name. It is the Warren court, the Rehnquist Court and now, the Roberts court.
The president has the military at his command while Congress controls the nation’s checkbook. The judiciary’s power, however, flows only from the nation’s willingness to accept its decisions as final. For these reasons, John Roberts, just like his 15 predecessors, works a tightrope daily. In times like these, it seems that Roberts has no net.
THE HEAT OF THE DAY.
On Friday, the Supreme Court issued a three-sentence order telling Texas that the Court would not hear complaints about how four battleground states conducted their elections. Chief Justice Roberts and his colleagues knew their order would disappoint scores of millions of Americans. Further, the justices also understood that only a fraction of Americans would comprehend the reasons for the ruling. Finally, the justices surely felt the heat of our politics; we are more divided and angrier than at any time in at least 50 years, if not longer.
One has to think that John Roberts dreaded the prospect of the 2020 election. We can trace much of our partisan rancor to the 2000 election that Supreme Court closed with its Bush v. Gore decision. Five of the justices played a role in that controversy. Justices Thomas and Breyer cast their votes as members of the Court while Roberts and Justices Kavanaugh and Barrett worked on the Bush legal team.
As this year went on, the pandemic worsened. To anyone vaguely acquainted with our electoral politics, it was clear that this election would be unlike any other. Challenge accompanies any change. The President made clear his view that he would challenge any negative result. With protests filling the street for much of the year, Roberts clearly saw the possibility of a dangerous conflict.
CENTURIES OF HISTORY.
A Vague Portfolio.
Article III of the Constitution defines the role of the courts as exercising the judicial power of the United States. Unlike the other two branches, however, the Constitution says almost nothing about how to carry out that role. That absence of any specific direction caused the First Congress to take up The Judiciary Act before anything else. Still, from the start of our republic, the Supreme Court has had to self-define how it would discharge its responsibility.
The First Judicial Crisis.
That dilemma came to the fore almost instantly. After the bitter election of 1800, John Adams had to transfer power to Thomas Jefferson. Lest we think we have invented the wheel, the outgoing administration wanted to court pack. Adams hoped to ensure that the size and philosophy of the federal judiciary served his goals, not his successors’. After the election, the pro-Adams Congress expanded the number of judges, filling vacancies with appointees who believed in a robust federal government. For the appointees to serve, they needed to receive their commission from the new Secretary of State, James Madison. Madison failed or refused to serve William Marbury and at least three others with their commissions.
Marbury sued, asking the Supreme Court to compel Madison to serve the commission. That suit put Chief Justice John Marshall between a rock and a hard place. The dispute involved the judicial power assigned to the Court by the Constitution. Yet, Madison could emasculate the Court by ignoring any order to deliver the commissions. If the Court did not address the legal issue it would be useless; if the Court could not enforce its judgment it would be powerless.
Marshall brilliantly found the middle ground. In Marbury v. Madison the Court held Madison’s refusal to serve the commissions illegal. The Court also determined that the law allowing Marbury to bring suit in the Supreme Court enlarged the Court’s power beyond its constitutional limits. The second part of the decision prevented the Court from ordering Madison to do anything. Marshall’s opinion established the Supreme Court as the final arbiter of federal law, yet avoided the ignominy of Madison ignoring the ruling.
Fruits of Marshall’s Tree.
Over time, Marbury’s first principle became a staple of high-school civics: the judiciary interprets the law. As a nation we embraced the belief firmly enough that the Court could tell us to integrate our schools, to give the accused lawyers and warnings, to hold a President accountable for his crimes in office, to allow abortions, to accept a President out of a disputed election, and to allow gays and lesbians to marry.
All of these things happened not because the Supreme Court had an army to enforce its decisions. Instead, the public’s respect for the Court translates to compliance with the Court’s rulings, even when we disagree. All 16 of the appointed Chief Justices worked to nurture that respect. Each understood that for “The Rule of Law” to succeed, the public must expect the government to comply with the Court’s rulings.
JOHN ROBERTS’ MOMENT.
For too many of us, high school civics has receded to a dangerously low level. We view the courts as a place to get “fairness”. Ironically, that view directly contradicts the central idea of the conservative legal movement. For twenty-five years conservatives argued that “justice” and “fairness” differ. The courts’ role is to interpret the law as written; if the law demands an unfair result, the court must deliver it. It is up to elected officials, rather than appointed ones, to remedy that unfairness.
Apparently, Texas Attorney General Ken Paxton is not much of a conservative. He filed a lawsuit asking the Supreme Court to upset the election because four battleground states conducted their elections “unfairly”. To be clear, I believe Paxton’s factual allegation to be baseless. Somewhere between 50-60 million people disagree with me, thinking fraud infects the election.
We have 220 years of water under the bridge since Marbury v. Madison and the water still runs the same path. The animating difference between Republicans and Democrats is the power of the federal government. That issue split Adams and Jefferson. We bulwark our view of policies through appointing like-minded people to lifetime federal judiciary positions or preventing the same. William Marbury lost his seat to politics just the same as Merrick Garland. Sadly, we view those who disagree with us as the sure end of the country. The warring Adams and Jefferson camps originated the dispute. On Friday, it was John Roberts’ turn to navigate those troubled waters.
AN END JOHN ADAMS WOULD WELCOME.
The Court made short work of Paxton’s suit finding that “Texas has not demonstrated a judicially cognizable interest in the manner in which other states conduct elections”. In plain English, the Court said it only can hear cases when the party bringing suit has been hurt. Texas has a right to determine how it conducts its own election and casts its 38 electoral votes. Whatever Pennsylvania and the others do to cast their electoral votes does not diminish Texas’ 38 votes. So, Paxton’s suit cannot leave the starting block.
Like John Marshall two centuries ago, the Roberts’ court reminded us that the Constitution matters more than any aggrieved candidate. Ironically, that was a lesson John Adams first taught. Before the revolution, a powerful British loyalist offered cogent arguments supporting the Crown’s right to rule America. The loyalist’s central thesis was expediency; one could not maintain an empire while indulging procedural rights. In other words, the King was what was best for Britain and its colonies. The reach and power of the Crown proved his point.
Adams responded that Britain was not supposed to be an empire, it labelled itself a republic. Most importantly. Adams noted that a republic was “a government of laws, not men.” Friday’s ruling affirms Adam’s principle. The Constitution defines what the Court can and cannot do, no matter who asks for relief. The fact that the justices appointed by the President apparently see it the same way should be particularly heartening. For today, we are still a government of laws, not men.
Edit: The original version of the article mistakenly credited Justice Alito for service on the Court during Bush v. Gore. It has been changed to accurately reflect that Justices Thomas and Breyer were serving at the time.