Roberts Says Separation Of Powers Means He Can't Testify, Senate Should Remind Him It Also Means 'Good Luck, Paying Your Bills, A**hole!'

(Photo by Alex Wong/Getty Images)

Chief Justice John Roberts wrote Senator Dick Durbin yesterday informing him that he would decline the invitation to appear at an upcoming Senate hearing to explain why he's the ringmaster of a whole circus of corruption down on First Street.

The Senate is interested in getting some insights into how the Chief Justice of the United States intends to restore confidence in the judiciary when his boys are collecting half a million in unreported vacations from donors or conveniently declining to mention that the other half of their transactions are lawyers with business before the Court. And that's before we even get to the stuff about one justice refusing to step away from issues directly implicating his wife.

Roberts considered the request and responded with a condescending lecture on the separation of powers instead.

Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence. The Supreme Court Library compilation of "Justices Testifying Before Congress in Matters Other Than Appropriations or Nominations" has identified only two prior instances -- Chief Justice Taft in 1921 and Chief Justice Hughes in 1935.

You see, the American constitutional system is a beautiful collection of checks and balances where each branch fulfills a critical role in the delicate regime. It's like a game of rock, paper, scissors. Here's an explanation of the rules according to John Roberts -- the Supreme Court is rock in this example:

Roberts provides no justification for this interpretation of the separation of powers except that very few of his predecessors have appeared before Congress to speak about court administration. While the Chief seems to see this as indicative of some unspoken constitutional restriction, it's much more likely that no one worried that Fred Vinson's justices were on the take.

Instead of appearing, Roberts included a two-and-a-quarter page "Statement on Ethics Principles and Practices" that he got the other justices to sign. The document amounts to a completely toothless "we promise what we're doing is ethical, okay?" Unfortunately for Roberts, you can only go to this well so often. There's nothing substantively different about this statement than what he put out the last time people looked to him to take an ethical stand. Or the time before that.

In other words, we've already tried the Chief's plan of "doing nothing" and it's not worked.

As Gabe Roth of Fix the Court put it, "Following weeks of scandal, Americans had been seeking some reassurance that nine of the most powerful people in the country understood their responsibility to act above board, avoid corrupting influences and be honest in their dealings and disclosures. No such comfort comes today."

But it's interesting that the report he cites includes "Other Than Appropriations" in the title, because Durbin should remind Roberts in a response that in a very real way this is very much about appropriations. Senator Chris Van Hollen, whose subcommittee oversees judiciary appropriations, suggested that he would tighten the Court's pursestrings absent serious ethical reforms before the latest spate of ethical buffoonery.

If Durbin and the Senate Democrats have the collective will to strike a blow for checks and balances, their response is easy. Here's a template!

Dear Mr. Chief Justice,

Thank you for your letter of April 25, 2023 declining our invitation to appear before the Committee. We also wish to thank you for your impromptu lesson on the separation of powers, a subject that we also take seriously. The United States Senate will not approve any future budget that does not reduce the SCOTUS operating budget by 85 percent. (Apparently this is called "the power of the purse" and is another famous separation of powers concept!) Enjoy your day.

P.S. As an additional cost-saving measure, we're voting to cut off your access to the building at One First Street and we're excited for your return to the glorified broom closet here at the Capitol. Perhaps as officemates we will have an opportunity to meet face-to-face by happenstance since you believe respecting the bare minimum of your constitutional obligations is insufficient to warrant a meeting.

Some worrywart Democrats might express concern that it's dangerous to go down the road of holding the judiciary's budget hostage to force it to enact administrative changes. Which is true!

But compared to the harm of a lawless judiciary engendering record low public confidence, budgetary sanctions are pretty tame.

Roberts declines to appear at Senate's Supreme Court ethics hearing [Politico]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you're interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.