Chief Justice Roberts Is Right:
An Unelected Official Should Not Cast Tie-Breaking Votes
Roberts’ unwillingness to interfere in the proceedings of the trial will undoubtedly infuriate the left, but despite the hysteria, he's absolutely correct.
On Friday evening, Chief Justice John Roberts announced that should a tie arise during the impeachment trial of President Donald Trump, he would not step in to break it.
Given the near-even split of the Senate along party lines, Roberts’ comments put an end to the extensive speculation that had been bubbling around Washington.
Senate Minority leader Chuck Schumer prompted Chief Justice Roberts by asking the Justice if he was aware of two instances in which Chief Justice Salmon Chase made tie-breaking votes in the impeachment trial of President Andrew Johnson in 1868. Johnson’s impeachment was the first in our nation’s history, resulting from frequent clashes between the Republican-controlled Congress and then-President Johnson, who repeatedly vetoed legislation designed to protect newly freed slaves.
Roberts informed Schumer that he was aware of Chief Justice Chase’s voting history, but that he would not be conducting himself in the same manner, should a tie arise.
Chase’s two tie-breaking votes were with regards to a motion to adjourn and a motion to end deliberations. Roberts addressed the significance of these two scenarios by stating, “I do not regard those isolated episodes 150 years ago as sufficient to support a general authority to break ties.”
“If the members of this body, elected by the people and accountable to them, divide equally on a motion, normal rule is that the motion fails. I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed,” he explained.
It is true that even if a certain act amounts to “precedent,” as in the case of Johnson’s impeachment, it doesn’t necessarily mean its correct. There are plenty of precedents that are fundamentally wrong and probably should be abandoned, but for a host of reasons, have not been.
At the time Roberts made his above statement, it was unclear as to how Republican Sen. Lisa Murkowski would vote on the motion to allow more witnesses. Had she voted in favor of the motion (she ultimately did not), the resulting breakdown of votes would have been 50-50, leaving the possibility open for Chief Justice Roberts to step in and “save” the motion by casting a vote in its favor.
The motion to allow more witnesses ultimately failed early Friday evening by a 49-51 vote, but Roberts’ comments provide a window into what to possibly expect, should another motion garner such a close result. Given the Republican majority in the Senate, Roberts’ unwillingness to interfere in the proceedings of the trial will undoubtedly infuriate the left, but despite the hysteria to which we will all inevitably be subjected, the Chief Justice is absolutely correct.
To the credit of those initially skeptical of Roberts’ comments, the Constitution itself is somewhat vague on the parameters of an impeachment trial. Article I, Section III provides the blueprint, albeit a slim one, of the Chief Justice’s role during an impeachment trial. It reads:
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
The complication arises from the verb “preside.” In the context of an impeachment trial, what does that precisely entail? Traditionally, when there is a tied vote in the Senate, the vice president would be responsible for breaking that tie as the “President of the Senate.” Clearly, when impeaching the president, it would be uncouth to have the vice president casting such votes, given the warped incentive structure impeachment might present for the vice president.
There has been considerable debate over whether the vice president’s role as “President of the Senate” amounts to a violation of the separation of powers doctrine upon which our Constitution is structured. Thus, Roberts is correct in his unwillingness to invite the same confusion into this impeachment trial, especially given the “sole power” accorded to the Senate with regards to trying all impeachments.
Given the highly contentious nature of this impeachment and the political polarization it has come to represent, it is hard to imagine a scenario in which Roberts’ casting a vote to rescue a motion on behalf of the Democrats would not be seen as partisan or in the very least, “judicial activism.” With a trial of this nature, urging the Supreme Court to put its thumb on the scale should strike all reasonable viewers as yet another attempt by the Democrats to usurp our political processes in order to get the outcome they favor.
When they lost the presidential election in 2016, we heard endless cries from Democrats calling for the destruction of the electoral college. When President Trump began discussing his nominees to the Supreme Court, Democrats started proposing various court-packing scenarios, should a Democrat win in 2020. When Democrats learned that the Supreme Court was considering hearing a case on the Second Amendment, five Democratic Senators sent a shameful legal brief to the Supreme Court, accusing the five Republican appointees of being beholden to big money and GOP overlords.
The Democrats, akin to modern-day Alinskyites, are unconcerned with the process, caring only for what they perceive to be the “correct” outcome. If the parties were reversed in this impeachment trial, I would pen the exact same piece, as the sanctity of our separation of powers doctrine cannot be overstated. For people who have bemoaned this trial as being “unfair,” it’s deeply ironic Democrats are asking for Chief Justice Roberts to perform something that many would regard as a fundamental usurpation of our republic’s values. I commend him wholeheartedly for not doing so.
Erielle is a staff writer at The Federalist and a part-time law student at Georgetown University Law Center.