Chief Justice John Roberts did something on Friday that he’s probably never done in open court since he took the bench more than a decade ago: He appeared visibly moved.
The Supreme Court wasn’t hearing any cases, but had gaveled in a special session to memorialize in its public record ― the nation’s public record ― the death of Justice Antonin Scalia. The occasion marked 30 years since the late jurist announced his first-ever opinion for the court.
“He made our days warmer, livelier and happier,” Roberts said near the end of the brief hearing, his voice trembling. “He sang loudest and best at our traditional birthday celebrations. He raised his glass highest to toast others’ happy occasions and his rich laughter filled our halls and our hearts.”
With days before the election, Roberts didn’t call the session to send a message about the problems of having an eight-member court and an empty seat. Merrick Garland, President Barack Obama’s choice to fill it, was even in attendance and sat directly in front of the justices, perhaps wondering if he’ll ever get to call them colleagues.
Instead, the Supreme Court was hewing close to its traditions, convening to accept a resolution honoring Scalia passed by the members of the Supreme Court bar ― who at an earlier meeting had approved it unanimously and for posterity.
And it was up to Attorney General Loretta Lynch, the country’s top lawyer, to move the resolution into the public record. In due time, the proceedings will go down in history in a bound volume known as the U.S. Reports ― together with every decision the court issued at that point in time, now the law of the United States.
“Mr. Chief Justice, on behalf of the lawyers of this nation, and in particular, the members of this court’s bar, I respectfully request that the resolutions presented to you in honor of Antonin Scalia be accepted by the court and that they, together with the chronicle of these proceedings, be ordered kept for all time in the records of this court,” Lynch, an Obama appointee, said during the rare appearance.
At a time when the high court has been politicized by a Republican-controlled Senate, which has threatened to leave it short-staffed if Americans choose a Democrat as their next president, the session demonstrated that the court, for all its flaws, still knows how to rise above partisanship.
That Lynch, Garland, Roberts and the other justices could pause and simply remember shows the court’s marble halls may be the last place in Washington where politics, if only for a moment, can be put aside.
Roberts has a lot riding in this presidential election. For all his conservative views, he remains the court’s institutional guardian ― expressing on the record his distaste for what bitter confirmation battles can do to the Supreme Court’s standing with the American people.
We don’t work as Democrats or Republicans, and I think it’s a very unfortunate perception that the public might get from the confirmation process Chief Justice John Roberts
“We don’t work as Democrats or Republicans, and I think it’s a very unfortunate perception that the public might get from the confirmation process,” he said during public remarks offered just weeks before Scalia’s death.
But institutionally, the election could also mark a pivotal moment in the history of the court. If elected, a President Hillary Clinton could name a ninth justice that would, for the first time in a generation, make a majority of its members Democratic appointees. On closely divided cases with competing visions of the Constitution, Roberts could effectively be relegated to the minority.
“Every new Supreme Court justice changes the nature of the institution,” Steven Shapiro, the outgoing national legal director of the American Civil Liberties Union, told The Huffington Post. The late Justice Byron White used to say more or less the same thing.
In a sense, the Scalia memorial, observed as citizens across the country are already casting their ballots, could be seen as a turning of the page, both for Roberts and the court where he is chief.
“Our minds will move to the measure of his reason in our chambers when we study his opinions,” Roberts said, speaking for himself and his bench mates, as he closed the Friday session. “And our hearts will smile, even as our eyes glisten, when we walk the halls and recall how happy we were whenever we saw him rounding the corner.”
There’s no telling if the Supreme Court could withstand even more obstruction in the coming years. As The Atlantic’s Garrett Epps put it once: “Despite its somewhat threadbare majesty, the Supreme Court, like the rule of law itself, is actually a fragile thing.”
Samuel Levine contributed reporting.