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Friday, January 22, 2021

Advisory Opinions and the Chief Justice

Here's another puzzle to solve. Can the Chief Justice  issue any written explanation for his decision to preside or not to preside over the Senate trial? I ask because doing so could be an advisory opinion. There is no Article III case or controversy, and he would be offering a view of the Constitution. How would that work exactly? One answer is that it's not an advisory opinion if the explanation comes in a press statement. But that seems wrong because then the advisory opinion limit can be evaded easily. Or maybe a presidential or ex-presidential impeachment represents some sort of exception to the idea that federal judges may not issue advisory opinions.

Note this problem is easier to solve if the Chief Justice shows up. Whatever he says during the trial about why he is there would not be an advisory opinion. If he does not show up, though, he cannot explain his absence in the Senate itself. The Senate, I suppose, could just say that they did not invite him and leave it at that. Maybe that's what they will have to do.

UPDATE: Chief Justice Hughes got around this problem during the Court-packing debate in 1937 by writing a "letter" to Senator Burton Wheeler giving his views. I suppose Chief Justice Roberts could write a "letter" to Senator Schumer or Senator Leahy.

Posted by Gerard Magliocca on January 22, 2021 at 11:03 AM | Permalink


Latest is Leahy will preside.


Posted by: Joe | Jan 25, 2021 1:35:46 PM

Maybe I'm a little mixed up here.

Getting back to the thrust of the OP, I do agree with Prof. M. that if we're just talking about the threshold question of whether the Chief can (or must) preside at all, that does seem less like a parliamentary/procedural issue and more like a legal one, for the reasons he gave. So ultimately I would also tend to agree that weighing in there results in an advisory opinion, albeit on a very esoteric point of law. As Joe noted as well (and like Prof. M.'s precedent from CJ Hughes), it would only be the opinion of a single Justice. That's obviously a bit different from the classic example—the 1793 letter to Washington—where the entire Court was involved.

But again, as a practical matter, I'm not convinced the need for such an opinion—on the ability (or duty) to preside—would ever come to pass. Maybe one could still argue that just by accepting or declining even without making any statement, he's implicitly opining about the question. In that case I think it's too ambiguous though.

As to pontificating on procedural questions within the impeachment context itself, then I think the Chief would be on much firmer ground (obviously, whether he would ever want to do that is another matter). Under the majority view in Nixon v. U.S., such questions are totally unreviewable by courts, so there wouldn't seem to be much harm in opining. But of course under the minority view, courts may have a limited role in particular cases, so he still might want to be cautious.

Moreover, prejudging a procedural question might suggest bias to some, which could lead to possible "due process" issues apart from the Art. III context. All the more reason not to do it in the first place.

Posted by: hardreaders | Jan 22, 2021 5:21:41 PM

I think "Joe" is quite right. Roberts isn't functioning in an Article III capacity here at all. I think he could render "advisory rulings" on hypothetical questions in an impeachment trial without the slightest Article III problem, for example.

Posted by: Asher Steinberg | Jan 22, 2021 4:13:52 PM

I did say he wouldn't be required to do much, which alluded to it being a ceremonial role. But you make a good point about the partisan aspect if Harris presides. That hadn't occurred to me, and I agree.

Be that as it may though, something—maybe his institutionalist leanings—tells me Roberts would still be willing to participate, even if Rs would just as soon have it be Harris. That's my prediction anyway, so we'll see before too long.

Posted by: hardreaders | Jan 22, 2021 2:45:34 PM

"I gather the Rs would prefer Roberts to do an encore than take their chances with VP Harris."

A presiding officer is basically a ceremonial role. They really have little real power though there is some symbolic weight. I think it is as likely Republicans would want her there, since it would look more partisan.

Posted by: Joe | Jan 22, 2021 1:57:01 PM

I take Joe’s comment to say that CJ Roberts can weigh in with reasons for declining—or accepting I guess, but an explanation in that case would seem a little gratuitous—if he (Roberts) wants to. That makes sense and I agree.

As a practical matter though, I really doubt the Senate would ask unless they were fully or at least mostly confident he would accept. That saves the Senate the embarrassment of being stood up if he says no. It also lets him avoid the awkward situation of having to explain why he declined.

I gather the Rs would prefer Roberts to do an encore than take their chances with VP Harris. While Ds might prefer Harris, being (some might say overly) cautious, they would likely settle for Roberts to head off any argument that Harris can’t preside—no matter how questionable that argument might be. And Roberts is a known quantity to them from last time.

From Roberts’ perspective, I’m sure he’d rather impeachment wasn’t happening in the first place, but I suspect that if asked he would accept. While it does detract from his day job, again, he already has one under his judicial belt, and it doesn’t seem like he’s actually required to do all that much. He may also get some bipartisan cred for participating.

The one X factor for Roberts is that it may be a bit of a different beast if Ds can be more active because of their increased numbers.

Posted by: hardreaders | Jan 22, 2021 1:41:17 PM

He is not operating here as if this was a regular court ruling, including as a circuit judge.

He is operating here in his separate role as a presiding officer. It seems reasonable to me that Roberts can in that fashion write official communications to the Senate, including an introductory letter presupposing he would or would not preside in such and such a case.

It would not be an "advisory opinion" in that sense as compared to the issue of a "case or controversy." A Chief Justice also statutorily has various jobs and can do something related if questions arise about his duties in such and such a situation.

Posted by: Joe | Jan 22, 2021 11:25:50 AM

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