The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, Seth Barrett Tillman and I discussed what would happen if Chief Justice Roberts was unwilling or unable to serve as the Presidential impeachment trial. This post was inspired when some claimed that Roberts would have to recuse from the trial. I did not think such a claim had any merit, but contended that if, for whatever reason Roberts could not preside, Clarence Thomas–the senior associate Justice would fill in. Initially, Gerard Magliocca, argued that only the Chief Justice could preside. However, after reading our post, Gerard came to agree with us.
Several other professors responded to our post. At the Faculty Lounge, Steve Lubet took exception with our "long post," and said it took a "long time" to reach our conclusion. To Steve, this question is simple.
I don't disagree with any of this, but I think there is a simpler solution. Article III vests the judicial power in one Supreme Court without specifying the number of justices and without any mention of a chief justice. Article II says only that the Chief Justice shall preside over presidential impeachments, with no mention of how the chief is chosen. The details are left to Congress, and 28 U.S.C. § 3 provides:
Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.
That ought to be the end of the discussion, without wending our way through various analogous provisions of Article II (Blackman and Tillman) or relying on structure (Magliocca) before reaching 28 U.S.C. § 3. I am not a constitutional law scholar, but I do not see why this statute requires more justification than any of the other statutes regarding the composition of the Supreme Court.
Lubet does not address an obvious response: 28 U.S.C. § 3 may be unconstitutional as applied to the presidential impeachment trial. Our arguments provide a basis to uphold the constitutionality of this statute, at a critical time.
Lubet continues that the constitutionality of this statute doesn't really matter, because the issue is not justiciable.
And one more thing. The Senate has the sole power to conduct the trial, which is non-justiciable according to the SCOTUS decision in Nixon v. United States. So the Senate's acceptance of an acting chief would be conclusive and unreviewable. A problem would arise only if the Senate were to reject the acting chief justice, which would also be non-justiciable. But in that situation—with a majority of the senators refusing to proceed — there obviously would never have been a conviction, anyhow.
Perhaps I have missed something, but why make it more complicated than that?
I disagree with his reading of Walter Nixon v. U.S. The Court seemed to leave open at least three questions concerning justiciability. Specifically, are the "three very specific requirements" spelled out in the impeachment clause justiciable? Chief Justice Rehnquist contrasted those requirements with the open-ended term "try".
The conclusion that the use of the word "try" in the first sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially manageable standard of review of the Senate's actions is fortified by the existence of the three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried. These limitations are quite precise, and their nature suggests that the Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word "try" in the first sentence.
Presumably, if the President was tried by someone other than the Chief Justice, he could challenge that trial in Court. Moreover, I am troubled by the all-too-common argument that members of the Senate can simply disregard their constitutional oaths of office because their decisions are immune from judicial review. I hope the impeachment process is more than a simply political exercise.
Several other people responded that our argument was, well, weird.
Carissa Byrne Hessick wrote, "This is a very weird blog post."
This is a very weird blog post. https://t.co/Vjryu8TzlE
— Carissa Byrne Hessick (@CBHessick) November 20, 2019
Dave Hoffman wrote, "It made more sense in its original Volokhian."
It made more sense in its original Volokhian.
— Dave Hoffman (@HoffProf) November 20, 2019
Co-blogger Keith Whittingon wrote "Their starting point was the possibility of Roberts recusal (does that mean you can't have a Trump trial!), which led me to seat-of-the-pants speculation on a most senior justice substitution in case of C.J. disability."
Their starting point was the possibility of Roberts recusal (does that mean you can't have a Trump trial!), which led me to seat-of-the-pants speculation on a most senior justice substitution in case of C.J. disability
— Keith E. Whittington (@kewhittington) November 20, 2019
And Jack Metzler, who has argued in front of the Court, wrote that we were "suggesting someone should off CJ Roberts. WTF?" (I take the phrase "off" to mean assassinate.)
Sounds like they are suggesting someone should off CJ Roberts. WTF? pic.twitter.com/MmlaUcNZt8
— Supreme Court Places (@SCOTUSPlaces) November 20, 2019
I previously discussed these subtweets here. None of these people have contacted me or Seth, or offered any substantive response. I can assure you, this post was not based on speculation, in the hopes that a Trump impeachment trial would be invalid. Twitter exacerbates an unfortunate tendency in our polity today: the innate desire to believe the worst in people; that they are only motivated by some improper rationale, and cannot possibly pose a question in good faith.
Seth and I discussed this issue some time ago. And our drafting process went through nearly a dozen rounds before we submitted it. We are grateful to Jack Balkin, no Trump fan, for posting it.
There are only a handful of circumstances in which the Chief Justice does not preside: death, incapacity, or removal from the position. It is impossible to discuss this question without referencing the fact that Chief Justices have died in office. And don't take our word for it. Chief Justice Rehnquist raised this precise question during oral arguments in Walter Nixon v. U.S.
Adam Liptak recounts the colloquy between Rehnquist and Solicitor General Ken Starr:
Still, the 1993 decision did appear to leave open a possible role for the court were the Senate to violate what Chief Justice Rehnquist wrote were "the three very specific requirements" in the constitutional text — "that the Senate's members must be under oath or affirmation, that a two-thirds vote is required to convict and that the chief justice presides when the president is tried."
When the case was argued, he asked the government's lawyer, Solicitor General Ken Starr, whether violations of those provisions could be challenged in court. (Mr. Starr would go on to investigate Mr. Clinton as independent counsel and to prepare the report that led to his impeachment.)
For instance, Chief Justice Rehnquist asked, what would happen if the chief justice died and Congress "created the office of vice chief justice?"
"We're going to let him preside," the chief justice said, sketching out the Senate's reasoning, "because it would just be catastrophic to wait for the appointment of a chief justice while this impeachment is pending."
"Can the Senate not do that because of the specific language 'the chief justice shall preside'?" Chief Justice Rehnquist asked. "Would that action by the Senate, followed by the presiding by the vice chief justice, be judicially reviewable?"
"I have to admit," Mr. Starr said, with apparent reluctance, that the answer was yes.
Rehnquist (who was the Chief Justice) asked about what would happen if he (or his sucessor) died before a presidential impeachment trial. Indeed he suggests that the "office of vice chief justice" would be unconstitutional. The only way to talk about succession is to talk about death. Morbid, for sure. But constitutionally proper.
The question we posed is an unsettled one, which may be subject to judicial review. I welcome substantive responses to our arguments.
Update: Seth notes on Twitter that Nixon only affects whether the question we posed is justiciable. I agree.
… then there is some scope for judicial review. That still leaves unresolved whether 28 USC S 3 is controlling. I think it is controlling for reasons Josh & I announced. I thank Adam Liptak and the NYTimes for bringing up this interesting matter.
— Seth Barrett Tillman (@SethBTillman) November 25, 2019