HL 86 – Enter the Chief

October 29, 2019

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Chief Justice John Roberts is about to emerge as a major player and possibly the closer in the last perilous year – give or hopefully take a few months – of the Trump presidency.  There is a slight bit of ambiguity and doubt in the prediction.  The Greatest Closer had failures to say nothing of his allowing Trump to exploit him.  That despite Trump’s constant slurs of Latino immigrants like him.

Donald Trump & Mariano Rivera

The quantum of doubt about how well Roberts will perform is small, very small.  While liberals like HL disagree with Roberts’ judicial decisions much of the time, he will be counted among the greatest chiefs when the final tally occurs.

Roberts despises Trump.  Let him count the ways.  But, certainly for his ignorance of and contempt for the judiciary, rule of law and the U.S. Constitution.  Roberts’ not uncommon revulsion is paired with the chief’s unique powers, that soon will be brought to bear.

As SCOTUS watchers and HL readers know, Roberts has already tipped his hand a few times.  That occurred in skirmishes that were trivial relative to the major battles ahead.  On November 21, 2018 Roberts tongue lashed Trump for his attacks on federal judges and for labeling them according to the POTUS who nominated them for life tenure on the federal bench.  Roberts has also blocked review or summarily disposed of several cases that the Trump Department of Justice desperately wanted the Court to hear and decide on the merits.

Justice Brett Kavanaugh

Two of these cases involved abortion and asylum, where it was expected that the recently far more right-wing Court would have ruled the way the “Trump Organization” wanted.  Even more notably, Roberts would likely have been in the majority and wrote the decisions in those cases.  And most notably, Roberts shamed Justice Kavanaugh into joining him in these blockades.  Kavanaugh had then recently disgraced himself and the Court during his confirmation hearings.  These were cases where Kavanaugh, like Roberts, would have sided with the administration on the merits.  We will return to the predictive value of these demonstrations of the chief’s power.

But all that was mere prelude for what is about to play out.  One act will likely come in a highly expedited SCOTUS review of Trump v. Vance, that was argued in the Second Circuit on October 23.  There Trump’s lawyer argued that a president could not be subjected to criminal process at any time.  Not trial, indictment, criminal information nor even investigation.  Even if they were found shooting people in front of Trump Tower at 5th and 57th or from the trunk of a car on the Beltway.

There are many other ludicrous assertions of privilege and contempts of Congress working their way to SCOTUS where Roberts can manipulate the Friday conference to expedite or retard the dates of arrival.

John Allen Muhammad

Donald Trump

Now that impeachment and trial in the Senate are far gone conclusions, the Constitution specifies in Article I, Section 3, Clause 6, that the Chief Justice will preside.  That is the same Constitution whose Article I, Section 9, Clause 8 was called “phony” by Trump.  In the trial of Donald Trump’s impeachment, the Senate will be the trier of fact, but the Chief will be the sole and unreviewable arbiter of the law.  That is where Roberts may alter the outcome from a widely predicted Clintonesque party line acquittal to conviction and “removal. . . and disqualification to hold. . . any Office of honor. . . under the United States”.  Roberts will be restrained only if Mitch McConnell does not attempt to rig the trial or deprive it of the time and process necessary for it to be a full and fair evidentiary proceeding.  If McConnell does attempt that, Roberts will become very active in the manner skillful judges can and do.  He may even himself question witnesses on direct and cross examination.  But unlike every other judge at every other level and in every other context, objections to what Roberts does will be like the sound of trees falling in an empty forest.

Mitt Romney

A parlor game is played daily on the cable news networks.  Speculation about which Republican senators might vote to convict and what more would have to be revealed to induce senators other than Romney, Murkowski and Collins to do so.  HL really can’t see 17 others, even assuming additional serious Trump crimes come to light.  But a just, angry and active Roberts may be able to shame them into doing that.  As was noted, Roberts forced Kavanaugh to vote contrary to the new justice’s intention and desire.  That was the same Kavanaugh who red-faced had virtually spit at Senators Klobuchar and Whitehouse when they questioned him.  That same Kavanaugh bowed to Roberts and in effect said, “Thank you sir, give me another.”

That is power, uniquely possessed by a Chief Justice who understands his authority and uses it.


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