An acid test for the Roberts court

Supreme Court Chief Justice John Roberts has insisted that federal judges are politically neutral, and recently several other justices have proclaimed their freedom from political partisanship and commitment to law. Now the moment has arrived when they must back up that claim.

The overriding question facing the nation – whether our democratic government will survive – is stark and chilling. Did operatives working on behalf of then-President Trump, Republican officeholders, the Trump campaign and the president himself help orchestrate the violent insurrection on Jan. 6 as part of an attempted coup intended to overthrow the results of the 2020 election and maintain Trump in power?   

The House Select Committee on the January 6 Attack is trying to answer that question, and there is mounting evidence that such an attempted coup was in operation. We know that Trump relentlessly promoted his “big lie” and that he incited the “stop the steal” rally and march on Jan. 6. We know that his closest allies were simultaneously manning a self-proclaimed “war room” in Washington’s Willard Hotel (partly paid for by Trump’s campaign), where they sought to overturn the election by promoting the “big lie,” urging Republican officials to challenge the election results in their states and pressuring Vice President Mike Pence to exercise a blatantly unconstitutional power to block Joe Biden’s certification as president and enable local Republicans to reverse the election results and shift their states’ electoral votes to Trump.

But now those who likely had knowledge of, or were involved in, the plot are trying to block the committee’s investigation. Backed by the Republican Party, their manifest strategy is to fight the committee’s subpoenas and delay its operations until Republicans take control of the House in 2022. Then Republicans will be able to kill the investigation, dismiss or bury its findings and protect Trump and all those involved in his plot.   

Consequently, the fate of the House investigation, and the future of the nation’s constitutional government, will hang on the Roberts court. How will it respond to the delay tactic and the committee’s coming efforts to have its subpoenas judicially enforced?

The justices have two options. They can remain detached from crawling and indecisive proceedings in the lower courts and allow delay to triumph. Or they can assert their discretionary authority to expedite enforcement actions, uphold the subpoenas and ensure that all of the critical facts are unearthed and made public.  

Aside from the Civil War, nothing in the nation’s history has come as close to endangering the nation’s constitutional government as Trump’s attempted coup. The closest analogies are President Richard Nixon’s maneuvers to cover up truths about the conduct of the nation’s war in Vietnam and his personal abuse of presidential power in the Watergate cover up. To the Court’s everlasting honor, it recognized the nation’s peril and did its duty. Twice it used its power to intervene decisively because the constitutional order was at stake.

In New York Times Company v. United States the Court addressed a national security challenge to the publication of the “Pentagon Papers.” The first newspaper article appeared on June 13, 1971, and the Nixon administration immediately sought to block further publication. The lower courts proceeded expeditiously and entered judgments on June 22. The Supreme Court granted certiorari on June 25, heard arguments the next day and issued judgment against the government on June 30. From initial filing to the Court’s final judgment, the entire legal process required only 15 days. 

In United States v. Nixon, the prosecutor issued a grand jury subpoena to Nixon on April 18 and the president’s attorneys moved to quash it on May 1. After a district court denied the motion on May 20, the prosecutor appealed directly to the Court, filing a petition for certiorari before judgment on May 24. The Court granted the petition on May 31, set the date for oral argument on July 8 and rendered its final judgment enforcing the subpoena on July 24. The entire legal proceedings took only a little over three months.  

The Court took its expeditious actions for obvious and compelling reasons. It was, as Chief Justice Warren Burger wrote in Nixon, “because of the public importance of the issues presented and the need for their prompt resolution.”

Now, there is no conceivable issue of greater public importance or one demanding the most prompt resolution than the immediate enforcement of the committee’s subpoenas.

On this decisive issue, the Court will either stand aloof and allow Republicans to run out the clock, or it will intervene promptly to ensure that the House is able to obtain the testimony and documents necessary to establish the truth before Republicans can bury it. Its choice will either sanction the Republicans’ cynical ploy or safeguard the nation’s constitutional order. 

Edward Purcell is the Joseph Solomon distinguished professor at New York Law School and an author whose latest book is “Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon.”