Roberts to Durbin: Drop Dead

Chief Justice Roberts "respectfully decline[d]" Sen. Durbin's "invitation" to appear before a Senate committee to discuss the wave of ethics concerns surrounding the Court. The letter included a new statement of ethics principles, signed by the nine Justices. Citing "separation of powers concerns and the importance of judicial independence," Roberts (ever the wannabee-but-incomplete-historian, as per his Year-End Reports) recites a laundry list of the times in which the Chief Justice or President has testified before congressional committees, as all were on "mundane matters of judicial administration." Imagine a student whose answer begins and ends with "this has not happened before on a matter this serious, therefore it cannot happen now."

Of course, my students take class assignments more seriously than the Chief Justice of the United States takes a request from the Chair of the Senate Judiciary Committee about a public controversy that undermines the Court's shaky reputation. Roberts' statement rests on a series of unspoken principles that capture the political and constitutional moment.

• Because the Supreme Court is constitutionally required, it is not subject to any congressional control or oversight. Roberts could put off Durbin on the barest of reasons. Durbin declined to "invite" Justice Thomas because he knew Thomas would refuse to accept. Steve Vladeck has a thread on this, arguing for considering the separation-of-powers issue in its full historical context, not of the uniquely modern-and-unchecked Court.

• I do not know how the Court would react if Congress tried to bring back some control--for example, expanding the Court's mandatory docket or reinstating circuit riding (whatever that might mean without the old circuit courts). Would the Justices push back against this rejection of the Court as a complete government in itself, despite the historical pedigree?

• A subpoena is not coming, which is why Roberts does not fear escalation. Committee Republicans will not agree to a subpoena and Durbin lacks the political will to try. Anyway, Roberts would sue to challenge it, arguing that it lacks any legitimate legislative purpose (because of separation of powers and SCOTUS's special place and the historical fact that no CJ has been subpoenaed). At worst, he ties it up until the end of the Congress. At best, no district judge would deny that injunction. Recall Roberts' opinion in Mazars and the deep distrust of congressional (as opposed to judicial) subpoenas. (Side point: I remain unable to square Speech or Debate immunity with the right to pre-enforcement challenges of subpoenas).

• The triumph of the Levinson/Pildes separation-of-parties thesis, introduced in 2006 (another lifetime) but truer than ever. Madison and Hamilton's assumed that Congress would destroy a Chief Justice and Court that rejected Congress' constitutional role in this way--Congress acted as an institution to check other institutions. But the introduction of organized--and ideological--parties destroys that framework. Senate Republicans do not see the (Republican-appointed) Justicses' actions as the problem to be investigated and checked; they see their Senate colleagues' actions as the problem to be resisted, making life difficult for their ideological compatriots in the other branches.