So, there will be an impeachment trial in the U.S. Senate starting next week. Chief Justice Roberts will preside over the trial. What does that mean to “preside”? In a normal trial, the judge would rule on disputes about evidence. He would admit or not admit evidence. At the end of the trial, he would tell the jury what the law is regarding the lawsuit or crime. None of this applies in an impeachment trial. Justice Roberts’ role is prescribed by the Constitution, Art. I, Sec. 3. But, the Constitution provides no details.
In the first impeachment trial in 1868, Chief Justice Chase essentially insisted on more than a ceremonial role. He insisted that he could rule on admissibility of evidence and on reliability of witnesses subject to being overturned by vote of the Senate. The rules in an impeachment trial are the Senate rules. There are no rules of evidence or rule of procedure. At the 1998 impeachment trial, Chief Justice Rehnquist accepted a more limited role. But, he did rule on one issue. One of the House managers referred to the Senate as “jurors.” Sen. Harkin objected that they were more than just jurors. Chief Justice Rehnquist sustained the objection, saying the Senate was also the court.
This upcoming trial finds Chief Justice Roberts in more lime light than he prefers. Pres. Trump routinely criticizes judges as partisan. He readily criticizes a ruling because it was issued by an “Obama judge.” I wrote a post here about Pres. Trump’s regular attacks on the judiciary. It really is extraordinary that the President would attack judges so publicly. Decorum in any court hangs by a thread. That thread hangs on the belief that judges are above partisanship. Yet, the Chief Executive of the country punctures that belief every day.
Chief Justice Roberts has been public in his defense of the federal judiciary. In 2018, Roberts responded to a Presidential criticism. The chief justice insisted there are no Obama judges, no Bush judges, no Clinton judges. There are only dedicated judges trying to do their level best to do equal right to persons appearing before them. See NPR news report here and New York Times report here for more information.
It will be interesting to see if Chief Justice Roberts will be more involved like Chase or or more reserved like Rehnquist.