Will Justice Roberts call balls and strikes at the impeachment trial?

Will Justice Roberts call balls and strikes at the impeachment trial?
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Chief Justice John Roberts will soon take on a role assumed only twice before in American history in presiding over the impeachment trial of a president. In 1868, Chief Justice Salmon Chase presided over the Senate trial of President Johnson. In 1999, Chief Justice William Rehnquist did so in the trial of President Clinton. Roberts is a staunch conservative judge appointed by President Bush. He has mostly sided with the conservative majority on the Supreme Court, but not always. Roberts cast the deciding vote against a challenge to the Affordable Care Act then again to shut down the White House effort to add a citizenship question to the census.

Roberts has fiercely defended the independence and impartiality of the federal judiciary. During his confirmation hearing in 2005, he said, “It is my job to call balls and strikes, and not to pitch or bat,” meaning judges should not be partisan. In 2018, when President TrumpDonald John TrumpKaine: Obama called Trump a 'fascist' during 2016 campaign Kaine: GOP senators should 'at least' treat Trump trial with seriousness of traffic court Louise Linton, wife of Mnuchin, deletes Instagram post in support of Greta Thunberg MORE denounced a jurist who ruled against his asylum policy as an “Obama judge,” Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have here is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

The professed claim by Roberts to ignore the partisan fray and administer impartial justice comports with what Alexander Hamilton had declared in the Federalist Papers to justify the trials of impeachments in the Senate. He explained, “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve unawed and uninfluenced the necessary impartiality between an individual accused, and the representatives of the people, his accusers?”

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The idealistic vision of impartial justice held by Roberts will be sorely tested when he presides over the deeply partisan impeachment trial of Trump. Ironically, Roberts has never before served as a trial judge. Before the Supreme Court, he served as a judge only on the District of Columbia Court of Appeals. By constitutional authority, and affirmed by precedent, Roberts has the power, just like any trial judge, to rule on all motions and procedural matters presented at trial. But his power is sharply limited by the constitutional provision that grants the Senate sole authority over impeachment trials. Senators are both jurors who will decide the fate of the president and also like judges empowered by majority vote to set the trial rules and override any decisions of the Supreme Court chief justice.

When the Senate tried Johnson in the aftermath of the Civil War, politics were no less bitterly polarized than today. Nonetheless, Chase sought to assert his control over the proceedings but he failed. Chase claimed sole authority to decide motions during the trial but he was overruled by the Republican majority. Most critically, the Senate overrode his ruling that the White House defense team could have as a witness Navy Secretary Gideon Welles. He was to testify that the violation of the Tenure of Office Act, the main charge against Johnson, was not impeachable because the cabinet had advised the president that the law was an unconstitutional restriction on his executive authority to appoint and fire federal officials.

Unlike Chase, Rehnquist diminished his role in the trial of Clinton. He acknowledged, “The Senate is not simply a jury. It is a court in this case.” In that spirit, he for the most part was a potted plant during the Clinton trial. He let the senators decide contested matters without first ruling himself, including the decision to call witnesses through videotaped testimony. He said, “I did nothing in particular, and I did it very well.”

Roberts has to decide whether to call balls and strikes like Chase did, or to fully remove himself from the game, like Rehnquist did. Unless bipartisan agreement is reached on trial rules and testimony, Democrats will surely move for the appearance of witnesses such as acting chief of staff Mick Mulvaney and former national security adviser John Bolton. Senators will have the final word on testimony, with Republicans in control. However, Roberts could still rule in favor of calling witnesses and force Republican Senators to take an override vote. Even if the Republican majority holds fast and overrules him, the political consequences would be profound.

Democrats would pounce upon the vote against the ruling by Roberts as proof that Republican senators, including those up for reelection, had trampled on impartial justice to rig the trial and engineer a coverup for Trump. Whether he chooses to rule on urgent matters or decides not to decide, Roberts will influence the trial of the century one way or another.

Allan Lichtman is an election forecaster and distinguished professor of history at American University. He is the author of the forthcoming book “Repeal the Second Amendment” and is on Twitter at @AllanLichtman.