The Volokh Conspiracy

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Chief Justice Roberts's Letter to Senator Durbin


Last week Senator Dick Durbin invited Chief Justice Roberts to testify before the Senate Judiciary Committee. Despite my hope that the Chief would send Justice Breyer, Roberts respectfully declined Durbin's invitation. And he sent a letter explaining his decision.

The letter is short–only one page–but Roberts packs a lot in there. I'll focus on three primary arguments.

First, Roberts invokes the separation of powers and judicial independence.

Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.

Roberts does not even begin to explain what those "separation of powers concerns" are. Nor does he elucidate why testifying would weaken "judicial independence." To play devil's advocate for a moment, Roberts would be under no obligation to talk about any case or controversy. And, with lifetime tenure and guaranteed salary, the Senators cannot actually do anything that would affect Roberts's ability to decide cases. The Senate could defund the Court, turn off the lights, eliminate law clerks, and so on, but those remedies are unlikely. Roberts's conclusory statements are not self-evident.

Yet, Roberts has made such an unexplained statement before. Every New Year's Eve, the Chief Justice issues an annual report. His statement from December 2011 included this paragraph:

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body. 

In January 2012, I wrote that Roberts issued an advisory opinion. At the time, I was persuaded by the Chief. But for reasons I'll explain later, I now think he's wrong. I'll come back to Roberts's opinion later in the post.

Second, Roberts turned to precedent. He explains that only two Chief Justices have testified before the Senate Judiciary Committee, including Chief Justice Taft in 1921 and Chief Justice Hughes in 1935. And those "hearings involved routine matters of judicial administration relating to additional judgeships in the lower courts and jurisdiction over appeals from lower court injunctions." Chief Justice Rehnquist appeared twice before House committees on similarly mundane matters. According to Roberts, no testimony was offered by Chief Justices Burger, Warren, or Vinson. Roberts mentioned that Chief Justice Warren submitted a prepared statement concerning federal employees salaries.

Roberts's history is incomplete. (He has a bad habit of ignoring unhelpful precedent; See U.S. v. Burr) The Chief omitted a very relevant invitation to testify in 1937. Shortly after President Roosevelt announced his Court packing scheme ("Court reform" in newspeak), the Senate Judiciary Committee invited Chief Justice Hughes to testify against the bill. Richard Friedman described the event in the Journal of Supreme Court History.

The Administration took less than two weeks to present its case, and then it was the turn of the opposition forces. Senator Burton K. Wheeler, the liberal Democrat from Montana, was scheduled to lead off their testimony on Monday, March 22. For some time he and his allies had been trying to bring the Court in on their side of the fight. On March 18 Wheeler, accompanied by Senators Warren Austin, a Republican on the Judiciary Committee, and William King, one of the panel's senior Democrats, called on Hughes to ask him to testify against the bill. The Chief Justice received the delegation "with his usual Jovian affability and expressed willingness to appear. He would not do so, however, unless accompanied by Brandeis, the senior and most revered member of the Court's liberal wing. The Senators left in jubilation, assuming that Hughes would testify with Brandeis and Van Devanter, as he had two years before against a bill aimed at changing the Court's appellate procedure, This time, however, Hughes found that Brandeis stood fast against an appearance in which the Justices would "testify on a matter affecting their own integrity." Hughes thereupon suggested that he might, in response to a request from the committee, write a letter stating the facts of the court's work. That idea Brandeis accepted and so, Hughes found, did Van DeVanter.

Ultimately, Hughes wrote a letter. But it was not approved by all members of the Court. Only Justices Brandeis and Van Devanter approved. Hughes wrote:

I have not been able to consult with the members of the Court generally with respect to the foregoing statement, but I am confident that it is in accord with the views of the justices. I should say, however, that I have been able to consult with Mr. Justice Van Devanter and Mr. Justice Brandeis, and I am at liberty to say that the statement is approved by them.

Plus Hughes seemed to issue an advisory opinion about whether Congress could divide the Supreme Court into "panels." Roberts issued his own such advisory opinion in December 2011.

Could Roberts have even prepared a letter on behalf of the entire Court in response to Senator? We know from Joan Biskupic's book that some of the other Justices are peeved at how much control the Chief takes over the Court unilaterally. I think it would be impossible for Roberts to gain consensus on such a letter. Speaking of Aaron Burr, Roberts did what he does best: talk less, smile more, don't let them know what you're against or what you're for.

Third, Roberts drew a direct comparison between himself and the President:

Congressional testimony from the head of the Executive Branch is likewise infrequent. According to the United States Senate website, no President has ever testified before the Senate Judiciary, and only three Presidents (in 1862, 1919, and 1974) have testified before any Congressional committee.

In 1862, President Lincoln voluntarily testified about how his annual message was prematurely published in a newspaper. In 1919, President Wilson voluntarily testified concerning the peace treaty with Germany and the League of Nations. And in 1974, President Ford voluntarily testified about his pardon of former-President Nixon.

Once again, Roberts played fast-and-loose with the history. A footnote on the Senate site indicates that George Washington testified before the full Senate in 1789.

1. President George Washington testified before the entire Senate on the subject of Indian treaties on August 22, 1789.

The Senate Judiciary Committee was not formed until 1816. So Roberts's statement was technically accurate, but it was not entirely forthcoming. Washington's meeting was actually quite significant. He sought the Senate's "advice" with regard to treaties with Indian tribes. Of course, the collective Senate was indecisive, and wanted to appoint a committee to study the matter. Washington found the incident to be such a waste of time that he never again sought the Senate's "advice." Going forward, Washington only requested "consent" in the form of a Senate ratification vote. I wrote about this episode in my 2017 article, SCOTUS After Scalia (starting at p. 135):

In a scene too remarkable to imagine, President Washington "started up in a violet fret."449 In words emphasized in Maclay's journal, the General barked, "This defeats every purpose of my coming here."450 Washington had visited the Senate with Henry Knox, the secretary of war, who could "give every necessary information."451 After Washington "cooled, however, by degrees," he did not object to a delay until Monday, "but declared he did not understand the matter of commitment" to a committee. 452 Washington then "withdr[e]w" with a "discontented air," that could be described as "sullen dignity."453 On Monday, the Senate reconvened, with President Washington wearing "a different aspect" from his previous visit.454 After a "tedious debate," and several modifications to the language of the treaty, the Senate provided its advice and consent.455 "This closed the business. The President of the United States withdrew, and the Senate adjourned."456 Presidential frustration with indecisive congresses is as old as the Republic.

Other than Roberts's incomplete account of history, the Chief Justice does not explain why he is analogous to the President. I suspect the answer would go something like this: the Constitution creates the executive branch and the judicial branch. The President is the head of the executive branch and Roberts is the head of the judicial branch. Therefore, they hold equivalent statute in our separation of powers. QED.

I don't think this argument works. The Constitution created the position of the President. No statute was needed when President Washington was elected. Likewise, no statute was needed to create the individual representatives and senators in Congress. No statute was needed to structure the number of Presidents (1) and size of each house. The Constitution took care of that. But a statute was needed to create the position that Roberts currently holds. And a statute was needed to set the size of the Supreme Court. Plus Congress was under no obligation to even create the lower courts, which Roberts now presides over. I discuss some of this history in Part II of my series with Seth Barrett Tillman:

Four years earlier, the Judiciary Act of 1789 stated that the "the supreme court of the United States shall consist of a chief justice and five associate justices." On the same day the Judiciary Act was enacted, President Washington sent a communication to the Senate, which was recorded in the Senate Executive Journal. Washington made nominations for the "Supreme Court of the United States." He selected John Jay for "Chief Justice," and John Rutledge, James Wilson, William Cushing, Robert Harrison, and John Blair as "Associate Judges."

But wait a minute, you might ask. Doesn't the Constitution require the Chief Justice to preside at the impeachment of the President? There is no requirement that the Chief Justice referenced in the Impeachment Clause is the same person as the presiding officer of the Supreme Court. None. Seth and I raised this issue during the first Trump impeachment, where we explained that Justice Thomas could have presided, if Roberts was unable to do so. Or, we think, Congress could designate a different presiding officer by statute. Lots of people offered commentary about our view on Twitter, but to my knowledge, they haven't revisited the issue in four years. It was, and is, very common for people to criticize us on topics they had previously given zero thought, and give zero thought subsequent to that criticism. Weird.

In any event, no the Chief Justice is not equivalent to the President in terms of our separation of powers. Why does this fact matter? Since Congress has created the judges of the Supreme Court by statute, Congress has enacted laws governing what those justices can do. Congress established the date on which the justice assembles (the first Monday in October), the required quorum size, the federal recusal statute, and so on. There are some limits on that authority with regard to judicial independence. But, sorry Chief, Congress could enact an ethics code on the Court. The permissible canons of such a code are a very different matter.