John Roberts and the myth of balls and strikes

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The details of the role Chief Justice John Roberts must play in the upcoming Senate trial of President Trump is a matter of some debate, even among Constitutional scholars. One commentator has said that he is to be a “potted plant,” in other words that his role is completely ceremonial. In this view, this proceeding is completely under the control of Majority Leader Mitch McConnell, with the Chief Justice’s role limited to perhaps certifying votes on procedure.

Call me naive, but the guy’s title has the word “Justice” in it, and I’d like to take the position that “justice” ought to play a major role here. Mitch McConnell and other Senate Republicans are openly conspiring to make a mockery of this critical Constitutional moment. Chief Justice Roberts ought to know what “justice” means and state some Constitutional expectations clearly here, but by his past words and actions, I fear he will not.

I find this “potted plant” view odd coming from the conservative side of the bar, where self-proclaimed Constitutional “originalists” claim gnostic-like hidden knowledge of the “original intent” of the Framers. But then, the role of the Vice President has never really lived up to its role as described in Article One, Section 3 of the U.S. Constitution either:

“The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

Since early days, the Vice President has often been a “potted plant” in more ways than this. The Senate calls him when a tie is looming, but otherwise he is “President of the Senate” by this vegetative label only. And while the Vice President “presides” over impeachment trials of judges and other civil officers, he presumably would have a natural conflict of interest in presiding over a presidential impeachment trial, thus the Constitution’s naming of the Chief Justice for this particular role.

John Roberts as a baseball umpire

In his confirmation hearings, Chief Justice Roberts famously testified to Congress that “My job is to call balls and strikes and not to pitch or bat.” My contention is that the “game” that John Roberts has “umpired” most of his professional career has often featured the Boston Red Sox versus some local Little League team.

Little League

It is not just that one side in court cases big and small has more money and power than the other side. Rather one side has “orders of magnitude” more money and power, and in some of his most impactful work, John Roberts has exacerbated this imbalance of power. Not only that, but many powerful individuals like Donald Trump have long been playing from a different rulebook from the rest of us.

Starting out in a top-tier “white-shoe” law firm, Roberts entered the Reagan administration as an Assistant Attorney General. In that role he was the main writer of briefs trying to gut the House of Representative’s extension of the expiring Voting Rights Act of 1965. His attack on the justice principle of “one person, one vote” has continued throughout his career, more recently writing the majority opinion for Shelby County v. Holder (2013), which struck down part of the Voting Rights Act of 1965 as unconstitutional some 40 years after enactment. From the Chief Justice’s secure umpiring perch, racism in state voting laws has been eliminated.

Once back in private practice in 2000, Roberts was instrumental in advising Florida Governor Jeb Bush on how to swing the contested Florida election toward his brother, George W. Bush. This assistance undoubtedly put Roberts on the short list for a Supreme Court nomination, which he got five years later. Nothing funny looking to see here, folks.

Citizen’s United and “one dollar, one vote”

Chief Justice Roberts continued his assault on fair elections in Citizens United v. Federal Election Commission (2010), ruling that “money is speech” and basically constitutionally immune from limitation in political campaigns. Now with two real billionaires and one ersatz billionaire [1] running for president, plus massive amounts of “dark money” pouring into political races, we have surely come much closer to “one dollar, one vote” than “one person, one vote.”

To be sure, the Founding Fathers, mostly the white, male (and often slaveholding) elite of the day, never did enshrine the “one person, one vote” principle specifically into their Constitution. This was mostly because women and slaves were not “persons,” and so that language would not be in their vocabulary. Indeed, the “original sin” of the Electoral College unintentionally guaranteed that just two political parties would be viable at any one time. It also set the stage for presidential Electoral College decisions, including two already in this century (2000 and 2016), that would counteract “the will of the people” in the popular vote. “Justice” in these cases has favored the former slave-holding states, plus some residual “Copperhead” states in the North, who continue to stomp on the voting rights of young and minority citizens.

I like the saying that “Rich ain’t what it used to be!” Americans are bad at math generally, but one repeating problem is the math of the above-mentioned “orders of magnitude,” or “powers of ten.” “Rich” isn’t just 10 times or even 100 times more wealth than the average person has. If you are an “ordinary millionaire” with “just” one million dollars’ worth of assets, Mark Zuckerberg has 70,000 times more “votes” than you in the economic and political arenas. [2] His company Facebook, arguably the most powerful political megaphone on the planet right now, has over 600,000 times the economic power of the “ordinary millionaire” in market capitalization.

Fish don’t know they are in water

Albert Einstein actually wrote the saying this way: “What does a fish know about the water in which he swims all his life?” [3] The perpetuation of giving Supreme Court posts to “white shoe” Federalist Society lawyers like John Roberts has clearly skewed the scales of justice toward the rich and powerful. Our society’s “Little League teams” are S.O.L.

I can think of four justices in my lifetime who were exceptions to that rule: William O. Douglas, Thurgood Marshall, Ruth Bader Ginsburg, and Sonia Sotomayor. The elite court-watchers call these justices “liberal,” but it is more accurate to say that “They grew up in very different water,” and have thus seen “justice” through very different lenses from the John Roberts’s of the Court.

Prove me wrong

So, here is my challenge to Chief Justice Roberts, if you are listening: Prove me wrong. The Senate Majority Leader has taken an oath of impartiality in the upcoming impeachment trial that is clearly perjurious, based on his public statements of active coordination with the White House. He will also first attempt to dismiss the House’s impeachment without hearing any direct witness evidence. Is that “justice”?

A dozen or so people, most non-political civil servants, have testified under oath that Donald Trump has inserted his own personal political campaign into the heat of a war zone in Ukraine, seeking to deny Congress’s constitutional spending authority and to smear a political opponent. Mr. Trump has presented zero witnesses in his defense and has indeed prohibited several people who were “in the room” from testifying under oath.

The evidence for obstructing justice and subverting the Article I powers of the Congress to investigate Executive Branch misdeeds is the subject of the President’s bragging tweets, as well as the extensively documented second volume of the Mueller Report. Is this “justice” when Senate Republicans refuse to put Administration officials who were “in the room” under oath?

Chief Justice John Roberts has the chance in this impeachment trial to go down in history as an advocate for “real Constitutional justice.” Or not. How is the betting hand you hold, Mr. Roberts?

Chief Justice prove me wrong.


Notes:

  1. In a 2018 post I cited a New York lawyer I had met back in the 1990s as calling the Trump Organization a “zero-billion-dollar business.” He meant that they act like they have billions of dollars in assets but could just as well be bankrupt next year, as happened after their Atlantic City debacle.
  2. Most people with $1 million of assets likely don’t consider themselves “rich,” but you would have to ask the 97% of Americans under that level of assets what they think.
  3. Einstein, Albert. Out of My Later Years. Secaucus, NJ: Citadel, 1956, p. 5.

1 thought on “John Roberts and the myth of balls and strikes

  1. Pingback: Impeachment and the death of professional ethics – When God Plays Dice

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