Editorial Board

How John Roberts Can Honor Scalia's Legacy

Photographer: Andrew Harrer/Bloomberg

The sudden death of Justice Antonin Scalia has given Chief Justice John Roberts a unique opportunity to affirm the Supreme Court’s rightful place in American politics: keeping the law above politics. He should seize it, even though -- and especially because -- the high court has a tenuous hold on that place.

Within hours of Scalia’s death, Republican leaders in the Senate announced that they would not consider confirming his replacement until after the 2016 election. Never before has the Senate attempted to put off an appointment for so long, nor has the court’s balance of power been thrust so forcefully into the middle of a presidential campaign.

Perhaps the Republicans’ gambit will have the effect of galvanizing voters in both parties. It could also further damage the integrity of an institution that has become as polarized as the electoral system it is shielded from. A presidential campaign that doubles as an election to replace Scalia would position the court as an extension of the parties more directly than ever before.

That may well be unavoidable. But Roberts can mitigate some of the damage to the court by taking a modest step: Reminding the Senate that an election year does not absolve it from its constitutional duties. Senators may ultimately reject the president’s nominee, but he or she should get a fair and public hearing.

It would not be the first time that Roberts decried politics intruding on the appointment process. “A persistent problem has developed in the process of filling judicial vacancies,” Roberts wrote in 2010. “Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes. This has created acute difficulties for some judicial districts.”

Now that same problem has created difficulties for the Supreme Court itself.

In his own 2005 confirmation hearing, Roberts likened his role as a judge to an umpire who calls balls and strikes. Umpires can also (contrary to popular belief) call a delay of game violation, and occasionally even break up on-field conferences aimed at buying warm-up time for relief pitchers.

Roberts has no authority to force the Senate into action, of course. But he is free to tell them to get on with it -- to basically trot out to the pitcher’s mound and tell the players to stop dawdling and do what the people expect them to do. They don’t have to listen to him, but they certainly should respect his commitment to fair play.

Should Roberts fail to speak up -- or, worse, condone the Senate’s stonewalling -- public perceptions of the court’s partisanship may harden. Roberts may prefer to stay out of a political fight, and the head of the judicial branch of government is right not to want to get too involved in the debates of the legislative branch. But he can also demonstrate his neutrality by stating that long delays are neither contemplated by the Constitution nor in the country’s best interest. Republicans may well ignore him. But such a step would be a credit to his tenure as chief justice and to the reputation of the court.

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.