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Horowitz: John Roberts is finally doing something constitutional

If you had to ask almost every modern judge how they would describe their jobs on the federal bench, they’d most likely offer the answer articulated by Chief Justice John Roberts during his confirmation hearings. “I will remember that it's my job to call balls and strikes and not to pitch or bat,” said Roberts in his famous baseball analogy during his opening statement before the Senate Judiciary Committee in 2005.

But this is actually a dangerous expansion of judicial power, because the Constitution accords him no such power to serve as the final arbiter of broad political questions. The one place the Constitution does grant him that authority as an umpire? During impeachment.

Conservatives were outraged yesterday when Roberts, presiding over the impeachment trial as chief justice, “struck down” one of Rand Paul’s questions to the parties at the trial. Roberts declined to read the question because it publicized the name of Eric Ciaramella, who is believed to be the whistleblower behind this impeachment inquiry.

After being rebuffed by the chief, Rand Paul revealed on Twitter the exact question he sought to ask: “My exact question was: Are you aware that House intelligence committee staffer [Sean] Misko had a close relationship with Eric Ciaramella while at the National Security Council together,” Paul stated, “and are you aware and how do you respond to reports that Ciaramella and Misko may have worked together to plot impeaching the President before there were formal house impeachment proceedings?”

It’s a pretty good question that cuts to the core of the legitimacy of the House impeachment. And I understand why conservatives are outraged that an unelected judge could have such power to overrule the submission of this question. But here’s the irony: Roberts indeed does have such authority vested in him by the Constitution. The reason why Roberts has legitimate authority to strike down procedures and questions from senators regarding impeachment is precisely the reason why he lacks the authority to “strike down” laws and policies of the other two branches with finality on every other issue.

Thus, the only reason why it’s so outrageous that he appears to wield this power is because it’s built on top of the absurdity that he and his unelected colleagues have the final say over abortion, marriage, immigration policy, election law, affirmative action, and everything that matters to the country, thereby gutting the need for or utility of state governments or the other two branches of the federal government.

When the Constitution states [Art. I, §3, cl. 6] that “the Chief Justice shall preside” over the Senate impeachment trial, it wasn’t just meant as a figurehead position to engage in archaic parliamentarian rituals. While he doesn’t get a vote on removal of the president, he was given authority to play umpire – literally calling balls and strikes on the trial. As the great Joseph Story explained in his Commentaries on the Constitution, the reason why the chief justice was chosen to preside over the trial “was to preclude the vice president, who might be supposed to have a natural desire to succeed to the office, from being instrumental in procuring the conviction of the chief magistrate.”

Clearly, the Founders meant for the presiding officer to be “instrumental” in the process. But why did they choose the chief justice? According to Story, “Who could be deemed more suitable to preside, than the highest judicial magistrate of the Union. His impartiality and independence could be as little suspected, as those of any person in the country. And the dignity of his station might well be deemed an adequate pledge for the possession of the highest accomplishments.”

Now think about this in the context of today’s conception of the Supreme Court. We are told that the SCOTUS justices are the sole and final arbiter of every single political question, including the definition of marriage, the building block of all civilization. Indeed, as Roberts hears oral arguments in judicial cases with broad political implications during his tenure as presiding officer over impeachment, court-watchers are engaged in speculation about his challenge of remaining impartial and how this will influence his decisions in court cases.

This is the exact opposite of what the Founders envisioned, precisely because judges were supposed to merely adjudicate boring cases and controversies and be above politics, not be given the authority to create finality in the most important political issues.

One could get a glimpse of the original design of the court by reading a letter John Jay wrote to President Adams rejecting the president’s request to name Jay chief justice of the Supreme Court. Jay, who had been a member of the very first Supreme Court, lamented how boring and inconsequential the court was in molding the direction of the country. He complained about the judiciary not being on equal footing with the other branches of government. And being the political statesman type, Jay had no interest in languishing in a stuffy room adjudicating criminal cases or bankruptcy law in the waning health of his elder years.

As Edward Bates, President Lincoln’s attorney general, stated in his letter on the power of the courts, “It is the especial function of the judiciary to hear and determine cases, not to ‘establish principles’ nor ‘settle questions,’ so as to conclude any person, but the parties and privies to the cases adjudged.”

With that conception of the judiciary in mind, it’s easy to understand why the chief justice was chosen as presiding officer over an impeachment trial. But if he is the top gun in the branch of government that, we are told, “settles” every question – from what is a citizen to what is a marriage or what is human sexuality – then he is the absolute worst person for the job of impeachment, someone whose “impartiality and independence,” in the words of Story, could be greatly “suspected.”

In fact, when Hamilton in Federalist 65 entertains the idea of having the Supreme Court as a full body actually take part in the process of convicting the president, either alone or along with the Senate, he rejected the idea because it would cause “pretext for clamour against the Judiciary, which so considerable an augmentation of its authority would have afforded.”

Imagine if Hamilton were to know that this body gets to be judge, jury, and executioner over every issue of society. Where is the clamour?

Conservatives who are outraged at Roberts’ authority over the trial, just remember, your real outrage should be directed at his authority over the future of our entire society, economy, borders, and life itself.

One last thing…
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