Supreme Court: Lost — or Found?

The Times’s Linda Greenhouse thinks the Chief Justice has lost the court because he won’t tell his colleagues to recuse themselves.

AP/Jacquelyn Martin, pool
Chief Justice of the United States John Roberts arrives before President Biden delivers the State of the Union address to a joint session of Congress at the Capitol, February 7, 2023, at Washington. AP/Jacquelyn Martin, pool

Linda Greenhouse of the Times is calling for Chief Justice Roberts not only to call balls and strikes, but also take a turn in the wrestling ring. That is the upshot of her latest op-ed in the Grey Lady, “How John Roberts Lost His Court.” She reports being asked why the Chief Justice fails to “instruct” or “jawbone” Justices Samuel Alito and Clarence Thomas into recusal with respect to cases that touch on January 6 for the actions of their wives.

Such pressure would be not only ineffective but also illegitimate. Chief Justice Roberts, in a November statement on ethics and the high court, wrote that “individual Justices, rather than the Court, decide recusal issues.” Unlike lower courts, the Supreme one cannot “freely substitute one district or circuit judge for another.” There are no backups. As he writes, “the Supreme Court consists of nine Members who sit together.”

Chief Justice Rehnquist, for whom Chief Justice Roberts clerked, articulated this “duty to sit.” That means that if recusal is not mandated, a justice is obligated to hear a case.  All the stranger, then, that it is Rehnquist whom Ms. Greenhouse invokes as a foil to the current Chief. Rehnquist, she writes, was “prized by his colleagues … as a straight shooter.” She lauds him for skipping a State of the Union to attend a painting class. 

We bow to no one in our regard for Rehnquist. Ms. Greenhouse, though, goes farther. She imagines that he “would have drawn on his well of capital inside the court and found a way to let Justices Alito and Thomas know that recusal from the Trump immunity case would be highly advisable even if not required. A raised eyebrow might have been sufficient.” She calls on Chief Justice Roberts to exercise the “spontaneity” of his mentor.

That brings us back to the duty to sit. It was Rehnquist who in Laird v. Tatum, wrote that “a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” Recusal, he adds, “raises the possibility of an affirmance of the judgment below by an equally divided Court.” Laird was decided in 1980, the same year as Chief Justice Roberts clerked for Rehnquist. He could have helped draft the decision. 

When Chief Justice Roberts acceded to his position, Ms. Greenhouse described him as someone “who knew the Burger Court as a law clerk to William Rehnquist twenty-five years ago and knew the Rehnquist Court as a practicing member of the Supreme Court bar,” where he won far more cases than he lost. Might not his reluctance to jawbone his fellow justices follow from this deep well of experience?

Ms. Greenhouse’s suggestion that Justices Alito and Thomas recuse themselves echoes the request from Senators Durbin and Whitehouse that the Chief take, as the senators put it, “appropriate steps to ensure that Justice Alito will recuse himself.” Chief Justice Roberts responded to their effort to haul him before Congress with a reminder of the court’s practice “for 235 years pursuant to which individual justices decide recusal issues.” 

It could be that when Ms. Greenhouse conjures loss, she is dwelling on decisions that have not yet been handed down. The Nine, after all, will soon rule on President Trump’s claim, in Special Counsel Jack Smith’s prosecution, of “absolute immunity” for official presidential acts. Also on the docket is a decision as to whether January 6 defendants can be charged with obstruction charges whose origins lie in financial fraud regulations.

In a 1992 address to the Federalist Society, Judge Laurence Silberman, now gone, alas, promulgated the “Greenhouse Effect,” whereby the “primary objective of The Times’s legal reporters is to put activist heat on recently appointed Supreme Court justices.” With the rise of a conservative court, that effect can be said to be ebbing into abeyance. Hence her hope that the heat might come not from the Fourth Estate, but from within the court itself.       

Ms. Greenhouse’s call — and that of Senators Whitehouse and Durbin — for  Justices Alito and Thomas to sit those cases could result in a tilted court. As Ms. Greenhouse writes, “deciding cases may not be enough these days.” It was a previous chief justice, John Marshall, who in Marbury v. Madison articulated the judicial prerogative to “say what the law is.” It may yet turn out that Chief Justice Roberts has not lost the court but found it.

The New York Sun

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