What the chief justice should have said

Two decades ago, during one of the periodic eruptions of congressional foolishness toward the federal courts, Chief Justice William H. Rehnquist spoke up for judicial independence.

It’s too bad that the current chief justice, John G. Roberts Jr., hasn’t been equally willing to speak up for the judiciary — in this case, for his own court.

Rehnquist stepped forward after several members of Congress, including Sen. Bob Dole, at the time the presumed Republican presidential nominee, called for the impeachment of a federal district judge in New York, Harold Baer Jr. The judge had just ruled that evidence in a drug case could not be used in court because it was the product of an illegal search. President Bill Clinton, pivoting sharply to the right during his 1996 re-election campaign, let it be known that he thought it would be a nice thing if Baer — one of his own appointees — resigned from the bench.

Rehnquist had a few years earlier published a book, “Grand Inquests,” about the Senate’s refusal in 1805 to convict and remove Justice Samuel Chase, who had been impeached by the House of Representatives at the behest of political enemies and critics of his rulings. In the midst of the storm over Baer, the chief justice used a previously scheduled speech at American University in Washington, D.C., to restate what he called the “guiding principle” of the Chase episode, that federal judges should never be impeached for their decisions. “From that day to this,” he said, that principle had served to protect judicial independence, “one of the crown jewels of our system of government.” The controversy faded, and Baer remained a federal judge.

Then on New Year’s Day, 2005, in what was to prove his last year-end report on the federal judiciary (he died in office in September of that year), Rehnquist used the occasion to respond to a new congressional eruption. A Republican congressman from Florida, Tom Feeney, had introduced the Reaffirmation of American Independence Resolution, declaring that Supreme Court justices and other judges who cited foreign law in their opinions threatened the “sovereignty of the United States.” Judges who based their decisions on foreign precedents risked the “ultimate remedy” of impeachment, Feeney said in introducing the measure, which quickly attracted dozens of co-sponsors.

Repeating his warning from nine years earlier, the chief justice said that “a judge’s judicial acts may not serve as a basis for impeachment.” He added that “any other rule would destroy judicial independence,” since “judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them.” (The resolution died, and Feeney was defeated for reelection in 2008.)

I thought of Rehnquist, and the deft way he used his office’s ability to command an audience, when I read the year-end report that his successor, Chief Justice Roberts, issued this past weekend. It was a paean to federal district judges: to how they toil, alone and unappreciated, managing dockets that average 500 cases at a time and handling the awesome responsibility of imposing sentences on convicted criminal defendants.

“This is no job for impulsive, timid, or inattentive souls,” Roberts wrote. He is an excellent prose stylist, and although chief justices have staff members who draft such documents, this one clearly spoke in his voice. He recounted the history of the federal district courts. He described new efforts to encourage pretrial settlements in civil cases and to lower the cost of pretrial discovery.

What he did not mention was that for nearly all of the year on which he was reporting, the Supreme Court seat made vacant by Justice Antonin Scalia’s death last February was kept empty by the Senate Republicans’ refusal to permit President Obama to fill it. (He also didn’t mention that 84 of the authorized 673 district judgeships are vacant, most because of the Senate Republicans’ refusal to bring even completely noncontroversial nominations to a vote.)

For all these months, Roberts has deflected questions about the impact the vacancy has had on the court, even as evidence has mounted that the polarized justices are having trouble even agreeing on what to decide. On the February argument calendar the court issued late last month, only seven of the 10 usual argument slots are filled. (Only the fact that the Presidents Day holiday falls on Monday, Feb. 20, ordinarily an argument day, saved the court from having five argument slots go unfilled, rather than three.)

The February calendar omitted — as had the October, November and December argument calendars — an important religion case, Trinity Lutheran Church v. Pauley, that the court accepted last January and that has been fully briefed and ready for argument since the summer. The case challenges the constitutionality of a provision of the Missouri Constitution that prohibits the expenditure of public money “directly or indirectly in aid of any church, sect or denomination of religion,” in this case the state’s refusal to let a church nursery school use a state grant program to upgrade its playground. The facts of the case make it appear almost trivial, but the question is a profound one of what limits the Constitution places on public financial support for religious institutions.

The church lost its case in the United States Court of Appeals for the Eighth Circuit, and Scalia’s vote to hear the appeal last January was one of the last significant votes that he cast. It’s evident that without his vote on the merits, the remaining eight justices are locked in a 4-to-4 tie and have decided not to proceed. Four votes are needed to accept a case for argument. The court does not announce how individual justices vote on granting a case, but from the extrinsic evidence of the current eight-justice deadlock, I feel safe in assuming that no more than five justices voted to accept the case, and that Scalia was one of them.

I’ll grant that it would have been a delicate matter for the chief justice to wade into national politics at this almost impossibly freighted moment, weeks before he is to administer the presidential oath to Donald J. Trump. (However awkward that moment might be, given that Trump has denounced Roberts as “a nightmare for conservatives,” it probably won’t match the awkwardness eight years ago. The chief justice then had the task of administering the oath to Barack Obama, who as a senator had voted against confirming him to the court.)

But it seems to me that if there was ever a moment to put delicacy aside, this was it. If the court isn’t suffering internally from the prolonged vacancy, it is surely suffering in the eyes of the public. People don’t have to be familiar with the intricacies of the docket to regard the court as little more than a prize of presidential politics, perhaps a tarnished prize at that.

No one expects the chief justice to take political sides in this ugly political season. But Rehnquist hated the exclusionary rule that Baer invoked in suppressing the tainted evidence, and he strongly opposed the citation of foreign law, and yet he found a way to speak up for judicial independence in a way that stood apart from politics.

There should be nothing partisan about the chief justice of the United States’ declaring that keeping a Supreme Court seat vacant for a year (actually, it certainly will turn out to be more than a year) so that an incumbent president couldn’t fill it was an unfortunate development that should not be permitted to become the norm. If making such a statement is regarded as unduly partisan, we’re in even worse trouble than I thought.

Keeping a court seat vacant for political reasons shouldn’t become the norm

Linda Greenhouse is a contributing op-ed writer.