Chief Justice Praises 'Overlooked' Judges, While Overlooking The Elephant In The Room

I'd say that Roberts failed at his own year-end test.

Chief Justice John G. Roberts Jr.

Chief Justice John G. Roberts Jr.

Chief Justice John Roberts issued his annual year-end report on the courts this weekend. One might think that Roberts would have a lot to say, given the unprecedented attack on the Supreme Court confirmation process led by Senate Republicans after the death of Antonin Scalia.

But Roberts did not mention the Senate’s refusal to hold hearings. In fact, Roberts didn’t mention the death of Antonin Scalia, or the challenges of working with an eight-member Court at all. It’s not even clear to me that Roberts knows 2016 actually happened. This man is going to show up to a Prince concert and wonder why nobody else is there.

Instead, Roberts highlighted federal district judges. I’m not making that up. 2016 was one rolling constitutional crisis, but all Roberts wanted to do was act as the damn Lorax for lower court judges. From the National Law Journal:

“The district judge serves as the calm central presence to ensure fair process and justice for the litigants,” Roberts wrote in his annual year-end report on the federal judiciary…

“This is no job for impulsive, timid or inattentive souls,” Roberts wrote, noting that “as the singular authority on the bench,” district judges “must respond to every detail of an unscripted proceeding, tempering firm and decisive judgment with objectivity, insight, and compassion.”

To be clear, avoiding controversy to make saccharine platitudes is not Roberts’s usual style with these things. In past years, he’s talked about the need to streamline the rules of Civil Procedure, and advocated for higher judicial pay. This year, Roberts sounds like a guy in a lifeboat watching the Titanic sink who turns to you and says “You know, the band was really good.”

The silence from the Chief Justice on the Merrick Garland obstruction has been loud and obvious. It’s not surprising to see him continue the strategy here, even to the point of issuing comically irrelevant reports.

Sponsored

There are many who praise the Chief Justice’s reticence, and believe him to be operating “above the fray” of petty politics. I can’t be counted as one of them. Roberts silence is petty politics, with an emphasis on “petty.” His refusal to stand up for the orderly and normal functioning of the Court and the confirmation process has made him look small at a time when the Court needed a “chief” the most. There is now precedent in this country for the Senate to ignore — literally refuse to hold a hearing and vote on — a potential Supreme Court nominee simply because they disagree with the politics of the person who nominated him.

That happened on Roberts’s watch, and he said nothing. I believe Roberts, and Roberts alone, could have risen above politics, and spoken out not in his own ideological best interest, but in the best interests of the Court and the country. I believe Roberts had a chance for greatness. It’d have been the kind of non-partisan move Supreme Court sycophants always talk about but rarely witness. Nobody was in a better position than John Roberts to unify the country around the idea that a Supreme Court Justice is more than a political pawn. Nobody was in a better position than Roberts to say that the Court should not be a political football. It’s the kind of moment that vaults a Supreme Court justice from “respected jurist,” to “historically significant law-giver.”

Roberts shrunk from his moment. The doors to the Chief Justice Hall of Fame were open to him, but he refused to cross the threshold.

Chief Justice Umpire? Please. Umpires are supposed to keep order. Roberts just watched a brawl break out at home plate and tried to pretend that it wasn’t his problem. “Sure, I sat on my haunches while the hitter caved in the pitcher’s skull with a baseball bat, but the count is 2-2, and I’m just here to call balls and strikes.”

Roberts says that a district judge: “must respond to every detail of an unscripted proceeding, tempering firm and decisive judgment with objectivity, insight, and compassion.” I’d say that Roberts failed at his own test. Good thing Roberts isn’t a lowly district court judge. His unique skill of putting his head in the sand while Congress hobbles an entire branch of government wouldn’t fly at the trial level.

Sponsored

Chief Justice Roberts Praises ‘Overlooked’ District Judges in Year-End Report [National Law Journal]


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.