The Chief Justice’s Inartful Dodging

“When Congress seeks information needed for intelligent legislative action, it unquestionably is the duty of all citizens to cooperate.” Trump v. Mazars, 140 S.Ct. 2019, 2036 (2020) (internal quotations omitted). So spoke the Supreme Court in an opinion by Chief Justice Roberts less than three years ago. Mazars involved congressional subpoenas for the financial records of then-President Trump, and the Court’s emphasis of the word all underscored the fact that the Constitution recognizes no super-citizens who are above this legal duty, not even the sitting president.

The chief justice seemed to be singing a different tune, however, when he responded this week to an invitation from Senator Durbin, chair of the Judiciary Committee, for Roberts or another justice of his choosing “to testify at a public hearing regarding the ethical rules that govern the Justices of the Supreme Court and potential reforms to those rules.”

Roberts informs Durbin that he “must respectfully decline” the invitation to testify. He explains that “[t]estimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.” He notes that “[t]he Supreme Court Library compilation of ‘Justices Testifying Before Congress in Matters Other Than Appropriations or Nominations’ has identified only two prior instances—Chief Justice Taft in 1921 and Chief Justice Hughes in 1935.” Furthermore, these and other instances of chief justices testifying before congressional committees involved only “routine matters of judicial administration” or similar “mundane” topics. Finally, Roberts cites the fact that “[c]ongressional testimony from the head of the Executive Branch is likewise infrequent,” pointing out that “no President has ever testified before the Senate Judiciary Committee and only three Presidents (in 1862, 1919, and 1974) have testified before any Congressional committee.”

Respectfully, this is an extremely silly argument. To begin with, it reads like a parody of how lawyers cherry pick precedents to support their arguments. Why does it matter how many times the “chief justice” (as opposed to any justice or even any Article III judge) has testified before “the Senate Judiciary Committee” in particular about matters other than appropriations or nominations? How is that more illuminating than, say, whether a justice named Roberts has previously testified in the month of May?

Undoubtedly the subject matter of the testimony matters from the perspective of separation of powers and judicial independence concerns. Congressional inquiry about judicial opinions and decisionmaking in particular cases has long been a red line for the judiciary. But why should judicial ethics rules and potential reforms be off limits? How are they different, as a constitutional matter, from other administrative and budgetary topics? Roberts does not say.

Even less defensible is the suggestion that the chief justice has some sort of special status that absolves him of the duty to cooperate with congressional inquiries. The attempt to analogize the chief justice to the president fails for multiple reasons. For one thing, the president himself is not immune from congressional inquiry, as Mazars reminds us. It is true that presidents have claimed an immunity from compelled congressional testimony, a claim that has been extended even to top aides. Whatever the merits of these arguments (don’t get me started), they do not support an analogous immunity for the chief justice or anyone on the Court. Again respectfully, people who take the entire summer off cannot contend that the national interest would be jeopardized if they have to spend a few hours testifying before Congress. Nor is it plausible to argue that the chief justice has the same relationship to the judicial branch as the president has to the executive branch. Don’t take my word for it. See Mazars, 140 S.Ct. at 2034 (“The President is the only person who alone composes a branch of government.”).

To be clear, John Roberts isn’t known for having an exaggerated sense of self-importance, and I don’t think that is why his letter is framed as it is. (And if Roberts were really concerned about his own personal appearance, he could have taken Durbin up on the offer of designating another justice to appear.). I suspect it has more to do with narrowing the scope of applicable “precedents.” If these were not limited to the chief justice, Roberts would have to acknowledge a relatively recent precedent, cited in Durbin’s invitation, in which two associate justices testified before the Senate Judiciary Committee. Specifically, Justices Scalia and Breyer appeared before the committee at a hearing on October 5, 2011, where they discussed “a wide range of political, practical and philosophical questions about the U.S. judicial system,” including whether there should be cameras in the Supreme Court and whether there should be tougher ethics rules. The charming and collegial presentation by the two justices was well received, though perhaps Chief Justice Roberts and his colleagues might prefer it be memory holed.

Professor Josh Blackman points to another example of engagement between the Court and the Senate Judiciary Committee which might be instructive here. In 1937, the opponents of FDR’s court-packing plan, led by Senator Burton Wheeler, invited Chief Justice Hughes to testify in the committee hearings against the bill. They assumed that Hughes would bring Justices Brandeis and Van Devanter, respectively representatives of the Court’s liberal and conservative wings, with him, as he had when he had testified before the committee two years earlier (in one of the two episodes mentioned in Roberts’ letter). However, while Hughes was willing to testify, Brandeis declined to attend, saying that the justices should not “testify on a matter affecting their own integrity.” So Hughes instead wrote a letter which raised both practical and constitutional objections to the court-packing plan (and which was supported by both Brandeis and Van Devanter, despite the former’s qualms about testifying).

As Blackman notes, this episode contradicts Roberts’ suggestion that chief justices have only weighed in on mundane or routine administrative matters. It also points to a different approach that Roberts might have taken to Durbin’s invitation. He could have declined to appear on the grounds that the chief justice has no special authority over the Court’s code of ethics, which must be adopted as a collegial decision of the justices (I assume this is true, though it is not my area of expertise). Therefore, it would be more appropriate for him to communicate with the committee in writing, thus allowing him to get the input of his colleagues before responding.

Such an approach would also be consistent with the fact that the chief justice routinely addresses matters of judicial administration in his year-end report. In his 2011 report, for example, Roberts discussed at some length the application of ethical and financial disclosure standards to the Supreme Court. While Roberts suggested that there was some constitutional doubt as to Congress’s authority to impose an ethical code on the Court, he has never disputed that Congress has a legitimate role to play in this area. As expressed in the 2021 report, Congress and the Judiciary have a relationship “reflecting inter-branch comity and deference” on matters of judicial ethics and in which “consistent with the principles of checks and balances embedded in our constitutional structure, Congress has continued to exercise oversight of the Judiciary’s operations, promoting a useful dialogue characterized by mutual respect in matters of administration.”

Rather than giving Congress the proverbial middle finger, the chief justice could have expressed a willingness to establish a “useful dialogue” in which the justices would seek to address the committee’s concerns in writing and thereby provide it with “information needed for intelligent legislative action.” Why he chose not to follow such a path is a matter of some puzzlement.

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