Chief Justice John Roberts isn’t just in charge of the Supreme Court. His role extends, more or less, to making sure the entire federal court system is running as it should — from his own court, all the way down to a lowly court in Iowa.
The Constitution “does not give federal courts the power to order relief to any uninjured plaintiff,” he wrote this week in a ruling siding with thousands of meatpacking workers who were stiffed on overtime pay.
Notably, Roberts ruled for the workers. But he wrote separately because he wasn’t so sure the district court in Iowa, where the workers first sued, would be able to divvy up their $ 2.9 million jury award properly.
“The Judiciary’s role is limited,” he added, to helping litigants “who have suffered, or will imminently suffer, actual harm.” If the Iowa court somehow couldn’t figure out how to distribute the funds “only to injured class members,” he wrote, “that award cannot stand.”
That’s classic, institutional John Roberts: sending signals to lower courts on how they ought to do their jobs. But in the wake of Justice Antonin Scalia’s death — and what’s shaping up to be a hopeless political fight over Merrick Garland’s confirmation — there’s also a need for the institutional John Roberts to speak up, for the sake of the Supreme Court’s own ability to function.
We don’t know how Roberts really feels about the gridlock over the vacancy at the Supreme Court. But an eventual appointment of Garland — or of any other Democratic nominee — carries a real risk for him. He’d become the first chief justice in several decades to be relegated to a minority with respect to the president who appointed the court’s current members.
“I’m sure he does not welcome another appointment by President Obama,” said Jeff Shesol, the author of Supreme Power: Franklin Roosevelt vs. The Supreme Court, an account of a presidential power grab that could have destroyed the high court as we now know it. “Whether Roberts is therefore willing to look the other way is an interesting question.”
Roberts is a student of prior chief justices, and as such is well-versed with the story Shesol tells in his book: that of an outraged and very popular Franklin Roosevelt, a Democrat, furious with a conservative Supreme Court that wouldn’t let him push his New Deal agenda forward.
Roberts himself recently told the story at New York University, but the lecture was less about FDR and more about the chief at the time, Charles Evans Hughes, whom he described as a godlike figure and praised for his handling of the standoff between the president and the Supreme Court.
Roberts said Hughes at the time sent “a very measured letter“ to the Senate, all but urging senators to reject FDR’s idea to increase the size of the court so that he could pack it with liberal judges who could do his bidding. Hughes won that battle.
Could Roberts attempt such a move today and defuse the standoff over Garland’s confirmation?
“I can’t imagine him doing anything overtly political,” Jeffrey Rosen, the president of the National Constitution Center and an expert on chief justices, told The Huffington Post. “But he’s a fierce defender of the court and its institutional legitimacy.”
Shesol agreed that Roberts’ “sense of propriety” will steer him away from anything too controversial.
Rosen said that because the Scalia vacancy is “a very polarizing political question,” Roberts is unlikely to intervene. But he conceded that things might change if the seat remains vacant for years, long after election season is over.
I can’t imagine him doing anything overtly political. But he’s fierce defender of the court and its institutional legitimacy.”
Jeffrey Rosen, National Constitution Center
But the public might want something sooner, especially in the face of an understaffed Supreme Court.
This week, on the same day the court released its pro-workers decision, the country got a taste of what a deadlocked Supreme Court is like – it put out its first 4-to-4 ruling since Scalia’s death, a one-page formality that leaves matters essentially the same as if the court had never heard the case. At a contentious hearing on Wednesday on the intersection between religious liberty and contraceptive coverage, the justices again seemed headed for an even split, potentially leaving in the lurch hundreds of thousands of women who depend on their employers for health care.
That’s only the beginning. There are major cases pending where the stakes for millions of immigrants, college students, union workers and voters all hang in the balance of an eight-member court. Without that crucial ninth vote, the legal landscape for all these disputes is far from certain.
Then there’s the uncertainty around Garland’s bitter nomination fight, and how that might end up tarnishing the Supreme Court’s image.
It was just last month, during an appearance at New England Law in Boston, that Roberts presaged precisely the kind of political chaos that’s unfolding over the court’s empty seat. His words, delivered before Scalia’s death, were prophetic.
“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said, as if empathizing with the yet-to-be-nominated Garland. ”If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural from someone in the public to say, ‘Well, you must be identified in a particular way as a result of that process.'”
That’s the status quo now, with Senate leadership vowing to not even consider Obama’s nominee, let alone meet with him privately for possible pre-vetting. A few senators have cracked or taken the high road, but on the whole Republicans remain committed neither to holding a hearing nor voting, as if signaling they’d be willing to allow a President Donald Trump to pack the court with even better judges than Roosevelt would have.
At his Boston speech, Roberts made no bones about what this kind of circus means for the court.
“We don’t work as Democrats or Republicans, and I think it’s a very unfortunate perception that the public might get from the confirmation process,” he said.
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