Keeping the Supreme Court above partisan politics

“A partisan reputation… is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”

We are all familiar with the title Chief Justice of the Supreme Court. The correct title is actually Chief Justice of the United States. Most people don’t know this, but the difference is important. The title Chief Justice of the United States was conferred upon that position in 1866 by Congress at the urging of Salmon P. Chase, the sixth chief justice in our nation’s history. We have had seventeen in that role thus far.

By making the change in 1866, Congress elevated the position to a much higher level, making the chief justice in his branch equal to the president in his. That means that not only does the chief justice preside over the (currently) eight associate justices, but he is also the administrator of the entire Judicial branch of the government.

In voting, the chief justice’s vote counts the same as the associate justices. The difference is that the chief justice presides over oral arguments in Court and sets the agenda for the Court’s meetings. The chief justice currently is paid $267,000 per year for life, while associates are paid $255,300 (“Judicial Compensation” Administrative Office of the U.S. Courts January 27, 2018).

The chief justice is also the presiding judge over all presidential impeachment trials, of which there have been two. He also decides who writes the majority opinion for the Court. He may write it himself, or he may select an associate justice.

When votes are taken on cases in closed meetings, the chief justice always votes first. Every year he also makes a report to Congress on the state of the judicial system. The chief justice appoints Federal justices at all levels to sit on administrative and judicial panels. He also administers the oath of office to the President, although that is not required by the Constitution. Any judge may perform that function as was the case with the death of President Warren G. Harding and the swearing in of Calvin Coolidge by his father who was a justice of the peace in 1923.

Chief Justice John Roberts is very much aware that “his” court has a reputation to maintain. The recent politically tinged struggle with the new justice Brett Kavanaugh must have brought a high level of anxiety to Roberts.

Roberts has worked very diligently to avoid the accusation that his court is partisan. Having that reputation diminishes the power and credibility of the Court and makes its decisions less important. It taints the Roberts court’s legacy.

This fear was made clear in the recent gerrymandering case that the Supreme Court ducked deciding on because Roberts was afraid it would show favoritism to one particular party—the Democrats—over the Republicans. Here is what he stated: “A partisan reputation… is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country” (Source: Stephanie Mencimer “John Roberts Has Tried to keep the Court Above the Partisan Fray. Kavanaugh Could Undo That.” “Mother Jones” Oct. 2, 2018).

Roberts also made this comment in an interview in 2007: “Politics are closely divided. The same with the Congress. There ought to be some sense of some stability, if the government is not going to polarize completely. It’s a high priority to keep any kind of partisan divide out of the judiciary as well” (Mencier).

That partisan hostility came from Justice Kavanaugh himself in an angry opening statement outburst that criticized the liberals and the Democrats for the attacks on his character and reputation.

Whether Roberts will be able to accomplish his goal of being above partisan politics remains to be seen. He is a conservative, but he is also more concerned with maintaining this image of judicial impartiality. It could be that Roberts may join the liberal minority to preserve his court’s legacy in future decisions, changing the political calculus.

Heavy hangs the mantel of the chief justice of the United States.

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