This is a job for Chief Justice Roberts, judicial statesman

By Steve Klepper (Twitter: @MDAppeal)

February 13 was likely the worst day for Chief Justice Roberts since he joined the Court in 2005. He lost a good friend. He lost an ally. These developments would be awful at any time. The timing, however, turned Justice Scalia’s death into a challenge to the Chief Justice’s quest to preserve the Court’s institutional integrity. Roberts is a student of history, however, and there is precedent for him to take action to defend the judiciary.

Before the day’s end, the Senate majority leader publicly declared that the “vacancy should not be filled until we have a new President.” A mere four hours after the news broke, the vacancy was the talk of a presidential debate. This scenario is the Chief Justice’s nightmare.

Robert Barnes today quoted a Boston speech where Roberts said, “If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.” Roberts loathes the “politicians in robes” narrative. For example, Roberts has voted against restrictions on political spending in elections, except for state judicial elections.

We now face efforts to transform the presidential election into a nationwide judicial election. Democratic and Republican Super PACs will weigh pour money into swing states, asking voters to elect a president and Senators who will choose the “right” justice.

Roberts could well view this scenario as the Court’s greatest institutional threat since Franklin Delano Roosevelt’s infamous “Court-packing plan.” During Roosevelt’s first term, the Court struck down federal and state efforts to combat the Depression. Disingenuously citing the demands of the Court’s work on the aging justices, Roosevelt proposed to appoint up to six more justices, one for each justice over 70 years old.

The antidote to the “wait until 2017 plan” is the same as the antidote to the Court-packing plan – popular opposition to politicizing the Court. Senate Republicans overachieved in the 2010 elections, which means they are defending difficult seats in this election. Let’s say that, three months from now, a few such swing-state senators approach the majority leader and say that the deadlock is killing them in the polls (like the last government shutdown hurt Republicans in the polls). If so, President Obama’s nominee almost certainly will receive a floor vote.

If Chief Justice Roberts looks to the lessons of the Court-packing plan, he’ll see that there is a precedent for him to act as a judicial statesman. In 1937, the Chief Justice was Charles Evans Hughes. He had the highest commitment to propriety. Speaking out against the Court-packing plan was problematic, but the plan itself was apocalyptic by comparison.

Chief Justice Hughes wrote a letter to Senator Burton Wheeler. Hughes refuted Roosevelt’s claims that the Court was unable to keep up with its workload. He posited that additional justices, or splitting the Court into panels, would make the Court less efficient. As Professor Richard Friedman has pointed out, the Hughes letter certainly looked like an “advisory opinion,” verboten under Article III. But that was the lesser evil from an institutional perspective. And – even though Justices Brandeis and Van Devanter scrutinized the letter before Hughes sent it – Hughes purported to speak only on behalf of himself, informed by what he believed to be his colleagues’ view. Hughes was speaking as an individual who happened to head the federal judiciary, not purporting to adjudicate any constitutional question on the Court’s behalf.

There isn’t empirical data to show that the Hughes letter had a practical effect on the failure of the Court-packing plan in the Senate. But it certainly did not help Roosevelt’s plan for the Chief Justice to refute the factual predicate for the Court-packing plan. The Hughes letter was a remarkable act of judicial statesmanship.

Chief Justice Roberts could similarly help to take the wind out of the “wait until 2017” sails. He could draft a letter to the chairman and ranking member of the Senate Judiciary Committee. I won’t purport to put words in the Chief Justice’s mouth, but Roberts could say, for instance, that he is on record opposing the politicization of the confirmation process. He could note the effect of the vacancy on the Court’s work. Roberts could observe that spring 2017 confirmation would likely be too late for a justice to participate in the Court’s work in the 2016-17 term – handicapping the Court for two terms. Like the Hughes letter, a Roberts letter would need no punchline along the lines of “I oppose the plan.” Rather, like Hughes, Roberts could allow the facts to do the talking.

If the political rhetoric is to be ratcheted down, Chief Justice Roberts is uniquely situated to assist. No one would fail to observe that a Republican president nominated him, and that he leans conservative. Roberts cannot defuse the debate by himself. But, like Chief Justice Hughes before him, Roberts would help to delegitimize the naked politicization of the nomination process.

Chief Justice Roberts has the opportunity to reaffirm his core message that the Supreme Court is not a political branch. And the example of Chief Justice Hughes establishes that it would be proper for him to do so.