When a Senator Passes Judgment on a Chief Justice

Senator Charles E. Grassley of Iowa, with reporters last week, delivered a rebuke to Chief Justice John G. Roberts Jr. in response to the chief justice’s concerns about the Supreme Court’s appearing too partisan.

WASHINGTON — The other day, Senator Charles E. Grassley of Iowa, the chairman of the Senate Judiciary Committee, decided to lecture Chief Justice John G. Roberts Jr.

Senate Republicans, Mr. Grassley said, were not to blame for the partisan deadlock over President Obama’s Supreme Court nominee. The real culprits? The chief justice and his colleagues.

Mr. Grassley’s tongue-lashing, delivered on the Senate floor, was in response to an analysis in this column last month of the chief justice’s stance as Senate Republicans refuse to consider the nomination. Chief Justice Roberts has said, for instance, that partisan confirmation hearings feed a false public perception that justices cast their votes “as Democrats and Republicans,” rather than as neutral arbiters of the law.

Mr. Grassley offered a different take.

“The chief justice has it exactly backwards,” he said. “The confirmation process doesn’t make the justices appear political. The confirmation process has gotten political precisely because the court has drifted from the constitutional text and rendered decisions based instead on policy preferences.”

“Physician, heal thyself,” Mr. Grassley told the chief justice.

Mr. Grassley did not list the decisions that troubled him. But he did say that only two members of the court, presumably Justices Clarence Thomas and Samuel A. Alito Jr., “stick to the constitutional text and vote in a consistently conservative way.”

Mr. Grassley’s logic, if that is the right word, was that conservative decisions are apolitical but that liberal ones are partisan.

As for Chief Justice Roberts, Mr. Grassley said, “a number of his votes have reflected political considerations, not legal ones.” Again, the senator did not say which votes he was talking about, but they probably included ones rejecting challenges to the Affordable Care Act.

Chief Justice Roberts has said that the president’s two previous nominees, Justices Sonia Sotomayor and Elena Kagan, were “extremely well qualified for the court.” Yet they were confirmed almost strictly along party lines, he said in remarks in Boston 10 days before Justice Antonin Scalia died on Feb. 13.

“That doesn’t make any sense,” Chief Justice Roberts said. “That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.”

There is truth on both sides, said Lee Epstein, a law professor and political scientist at Washington University in St. Louis.

“I think Grassley may be right,” she said, “to blame the court for the increasing role of ideology, as opposed to qualifications and other factors, in Senate confirmation proceedings.” She added that politics had played a significant role in Supreme Court decisions since at least the 1950s.

“But Chief Justice Roberts is also right,” Professor Epstein said. “Political science research shows that Americans are less likely to support the court when it is portrayed as a political body — as it is during confirmation proceedings — and not a legal body.”

Chief Justice Roberts has said nothing in public about the confirmation process since Justice Scalia died. He has been silent on the nomination of Judge Merrick B. Garland. Mr. Grassley’s remarks, made on April 5, seemed calculated to make sure that Chief Justice Roberts stays quiet notwithstanding exhortations from constitutional scholars that he speak up.

“That’s a political temptation that the chief justice should resist,” Mr. Grassley said.

But there is precedent for measured intervention by a chief justice in a clash over the nature and future of the Supreme Court. Consider another chief justice’s response to President Franklin D. Roosevelt’s court-packing plan.

In 1937, unhappy with Supreme Court decisions striking down New Deal programs, Roosevelt announced a plan to add justices, saying the current ones were overworked.

The plan was defeated after a letter from Chief Justice Charles Evans Hughes to the Senate rebutted Roosevelt’s charges in mild language backed by detailed figures.

“The present number of justices,” Chief Justice Hughes wrote, “is thought to be large enough so far as the prompt, adequate and efficient conduct of the work of the court is concerned.”

Chief Justice Roberts may also have views about whether the present number of justices on his court — eight — is adequate. He certainly admires Chief Justice Hughes, as he made plain in remarks in November at New York University’s law school.

“One of the greatest crises facing the Supreme Court since Marbury v. Madison was F.D.R.’s court-packing plan,” Chief Justice Roberts said, “and it fell to Hughes to guide a very unpopular Supreme Court through that high-noon showdown against America’s most popular president since George Washington.”

“There are things to learn from it,” Chief Justice Roberts said.

James F. Simon, the author of “F.D.R. and Chief Justice Hughes,” said he saw parallels between the two historical moments.

“I think Hughes would have been frustrated and annoyed by the present Senate Republicans’ vow to ignore their constitutional obligation to consider Garland’s nomination,” Mr. Simon said. “I suspect that Roberts shares those feelings. Both Hughes and Roberts put great value in protecting the court’s integrity.”

The key difference, Mr. Simon said, is that senators had asked for Chief Justice Hughes’s views.

“Should the Senate Judiciary Committee make a similar request to Roberts, I think he would probably respond, giving a carefully worded nudge to the committee to consider Garland,” Mr. Simon said. “But I don’t see Grassley reaching out to the chief justice.”

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