Simson is Macon Chair in Law and former dean at Mercer Law School, professor emeritus at Cornell Law School, and a member of the board of directors of Lawyers Defending American Democracy.
You don’t have to be a big fan of Chief Justice John Roberts to concede that he wouldn’t dream of jet-setting around the country at a conservative billionaire’s expense or hanging outside his home a favorite flag of 2020 election deniers or Christian nationalists. But then why, you must be wondering, was he so unwilling to even meet with the Senate Judiciary Committee when invited in April 2023 to discuss Justice Clarence Thomas’ seemingly conscience-free jet-setting and when invited last month to discuss Justice Samuel Alito’s perhaps even more ethically challenged flag-hanging?
One thing’s for sure: You won’t find the answer in either of the letters the chief justice wrote declining the committee’s invitations. Of course, he wasn’t so impolite as to give no reasons, but the reasons he gave were all stated in such a cryptic or conclusory way that they seemed designed mainly to send the message, “I’m not coming, and I don’t even have to convince you I’m right not to come.”
In both letters he broadly alluded to “separation of powers concerns and the importance of preserving judicial independence.” Separation of powers and judicial independence undoubtedly are principles fundamental to our Constitution, but neither was genuinely threatened by the chief justice meeting with the committee. Both principles have never been understood as absolutes. If they don’t leave room for Congress to question a chief justice when justices act in ways that cast doubt on the Supreme Court’s ability to render impartial justice, our entire system of government is in big trouble.
In one letter, Roberts called attention to “the practice we have followed for 235 years pursuant to which individual Justices decide recusal issues.” Very simply, he seemed to be saying, the Supreme Court since its inception has left it to each justice to decide whether he or she needs to recuse; therefore, it’s illogical to ask a chief justice to discuss another justice’s recusal decisions.
But the longevity and wisdom of a practice are two very different things. Even if we assume that giving individual justices complete autonomy over their own recusal decisions made sense 235 or even 35 years ago, that hardly establishes that it makes sense today, particularly in the teeth of the powerful evidence to the contrary supplied by Thomas’s and Alito’s decisions.
Surely that distinction wasn’t lost on Roberts. I strongly suspect, though, that he was willing to bite the bullet and live with Thomas’s and Alito’s ethically impoverished decisions because he believes that in general anyone not on the Supreme Court, including the many senators on the Judiciary Committee who are lawyers, can’t understand as well as a justice what’s at stake in justices’ recusal decisions.
Roberts undoubtedly recognized that Thomas’ and Alito’s recusal decisions can leave a lot to be desired. He must have been thinking, though, that in the long run the American legal system is best served by the Supreme Court keeping recusal decisions entirely in-house and rejecting any efforts, however well-meaning, of the other branches to review them.
That understanding of the chief justice’s thinking fits neatly with the message sent by the toothless Code of Conduct that the Supreme Court, after much prodding, finally released last fall. It’s also of a piece with the various majority opinions that the chief justice has authored or joined that reject agencies’ interpretations of the federal statutes they are charged with administering. Time and again, those opinions implicitly suggest that the justices are so intellectually gifted that they need not give any particular deference to agencies’ special subject-matter expertise.
Of course, I can’t say for certain that my rendition of the chief justice’s thinking captures what he was actually thinking. I have little doubt, though, that it captures well the message that his refusal actually sent, and it was a message of extraordinary hubris.
There’s simply no basis for his apparent assumption that justices’ recusal decisions are somehow beyond the ken of anyone not sitting on the court. Yes, Supreme Court recusals are unique in some ways. Most importantly, if a justice recuses, no other judge can be designated to sit in their place. To imply, however, as Roberts’ refusal to meet with the Judiciary Committee seemed to do, that senators are somehow incapable of factoring that difference into their thinking when assessing Thomas’ and Alito’s recusal decisions is insulting and wrong.
Public confidence in the Supreme Court is a precious commodity much in need of restoration. Rather than squandering it further by demonstrations of hubris, Roberts should exercise his leadership in ways that model for the other justices and communicate to the public a healthy sense of humility.
An Independent Voter's Perspective on Current Political Divides
In the column, "Is Donald Trump Right?", Fulcrum Executive Editor, Hugo Balta, wrote:
For millions of Americans, President Trump’s second term isn’t a threat to democracy—it’s the fulfillment of a promise they believe was long overdue.
Is Donald Trump right?
Should the presidency serve as a force for disruption or a safeguard of preservation?
Balta invited readers to share their thoughts at newsroom@fulcrum.us.
David Levine from Portland, Oregon, shared these thoughts...
I am an independent voter who voted for Kamala Harris in the last election.
I pay very close attention to the events going on, and I try and avoid taking other people's opinions as fact, so the following writing should be looked at with that in mind:
Is Trump right? On some things, absolutely.
As to DEI, there is a strong feeling that you cannot fight racism with more racism or sexism with more sexism. Standards have to be the same across the board, and the idea that only white people can be racist is one that I think a lot of us find delusional on its face. The question is not whether we want equality in the workplace, but whether these systems are the mechanism to achieve it, despite their claims to virtue, and many of us feel they are not.
I think if the Democrats want to take back immigration as an issue then every single illegal alien no matter how they are discovered needs to be processed and sanctuary cities need to end, every single illegal alien needs to be found at that point Democrats could argue for an amnesty for those who have shown they have been Good actors for a period of time but the dynamic of simply ignoring those who break the law by coming here illegally is I think a losing issue for the Democrats, they need to bend the knee and make a deal.
I think you have to quit calling the man Hitler or a fascist because an actual fascist would simply shoot the protesters, the journalists, and anyone else who challenges him. And while he definitely has authoritarian tendencies, the Democrats are overplaying their hand using those words, and it makes them look foolish.
Most of us understand that the tariffs are a game of economic chicken, and whether it is successful or not depends on who blinks before the midterms. Still, the Democrats' continuous attacks on the man make them look disloyal to the country, not to Trump.
Referring to any group of people as marginalized is to many of us the same as referring to them as lesser, and it seems racist and insulting.
We invite you to read the opinions of other Fulrum Readers:
Trump's Policies: A Threat to Farmers and American Values
The Trump Era: A Bitter Pill for American Renewal
Federal Hill's Warning: A Baltimorean's Reflection on Leadership
Also, check out "Is Donald Trump Right?" and consider accepting Hugo's invitation to share your thoughts at newsroom@fulcrum.us.
The Fulcrum will select a range of submissions to share with readers as part of our ongoing civic dialogue.
We offer this platform for discussion and debate.