Why doesn’t Chief Justice Roberts demand that Thomas and Alito resign from the Supreme Court: Ask Jordan

“Why doesn’t Chief Justice Roberts just demand that Thomas and Alito retire immediately to help save the (rather damaged) integrity of the Supreme Court?”

 — William E. Lowry, Charlotte Hall, Md.

Hi William,

The chief justice can’t force his fellow justices to retire. Though his “chief” title might suggest otherwise, he can’t force them to do much of anything. 

There was a time when a prior chief justice, Earl Warren, urged another justice facing scrutiny, Abe Fortas, to resign for the good of the court. Fortas did so in 1969, even while insisting he had done nothing wrong. Several factors distinguish that episode from today’s mess, including that Fortas’ purported financial impropriety was less egregious than Thomas’ behavior.

But I raise the historical point to note that chief justices have soft power they can wield, though we don’t have any indication that Roberts has attempted to exercise it over his colleagues here. 

I also don’t think that Roberts would want his fellow Republican appointees Thomas and Alito to resign, at least not when a Democrat could appoint their successors. Then-President Richard Nixon’s administration pressured the Democratic-appointed Fortas off the court. Nixon, a Republican, then appointed his successor.

Roberts may have wanted Thomas and Alito to recuse themselves from Jan. 6-related cases, but even that might be giving the chief too much credit unless we learn otherwise. One of those cases came down Friday, with Thomas and Alito signing on to Roberts’ 6-3 majority opinion siding with the Jan. 6 defendant in Fischer v. United States.

Roberts recently refused to meet with Democratic senators about the court’s ethics issues following Alito’s flag-flying scandals. He said his refusal was grounded in preserving judicial independence and the separation of powers. So whether it’s due to his lack of hard power or lack of interest — or both — his view of what it means to protect his court’s integrity may differ wildly from that of many people in this country who are bound by his court’s rulings.     

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