Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
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Gerard Magliocca gmaglioc at iupui.edu
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Linda McClain lmcclain at bu.edu
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Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
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Alice Ristroph alice.ristroph at shu.edu
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David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
John Roberts on the Chief Justice's Power to Break Tie Votes in Impeachment Trials
After Lisa Murkowski announced that she'd capitulate to Mitch McConnell and vote "no" on compelling further evidence in the Senate trial, it was obvious there wouldn't be any tie votes that the Chief Justice might choose to break (or not). (Murkowski even suggested a patently pretextual "sparing the Chief that decision" rationale for her decision: She wrote she didn't want to allow the Democrats to purportedly "drag the Supreme Court into the fray").) Only then did a Senator finally decide to ask Chief Justice Roberts, in effect, what he would do in the case of a tie vote. Senator Schumer made a "parliamentary inquiry" to Roberts--namely, whether he was aware that Chief Justice Chase had broken two tie votes in the Andrew Johnson impeachment trial. Roberts was obviously ready and willing to answer such a question and had prepared a response, apparently hand-written,which he recited:
I am [familiar with the Chase examples], Mr. Leader.
[O]ne [motion on which Chase broke a tie vote] concerned a motion to adjourn,
the other concerned a motion to close deliberations. I do not regard
those isolated episodes 150 years ago as sufficient to support a general
authority to break ties. If the members of this body elected by the
people and accountable to them divide equally on a motion, the normal rule is
that the motion fails. I think it would be inappropriate for me, an
unelected official from a different branch of government, to assert the power
to change that result so that the motion would succeed.
In other words, Roberts did not opine on whether the Chief Justice has a "general" authority to break tie votes, but did announce that in his view, contra Chase, it would be "inappropriate" for him to do so.
Even though I think the Chief Justice as "presiding officer" surely has the legal authority to break tie votes,I can't say I'm surprised that Roberts would adopt such a categorical practice of noninvolvement.
Shortly thereafter, Senator Schumer made three motions to subpoena witnesses and testimony, and Senator McConnell moved to table each of Schumer's motions. Those motions to table were approved on votes of 53-47 (on a broad motion to subpoena witnesses and testimony) and 51-49 (on two motions to subpoena John Bolton). Senator Van Hollen then made a motion to require the Chief Justice himself to unilaterally (i.e., without a Senate vote) rule on motions to subpoena witnesses and documents, and thereafter to unilaterally rule on any assertions of privilege. Again, McConnell voted to table the motion, and that tabling motion passed on a 53-47 party-line vote.
Given Roberts' decision not to vote on any ties, if the votes on McConnell's motions to table would've been 50-50, those motions would have failed, leading to debate . . . but then, after debate, if Schumer's motions to subpoena, and Van Hollen's motion to instruct the Chief Justice to decide subpoena motions, likewise would have resulted in 50-50 votes, then they, too, would have failed--in all cases without any involvement from Roberts.
I assume the same would have happened if a witness had appeared and there were an objection to testimony on privilege grounds: If the vote on such a motion would have been 50-50 Roberts would have deferred, the motion would thus have failed, and the witness would have been instructed to testify. (But if for some reason there'd have been a motion to compel a reluctant witness to respond to a question on which Trump asserted privilege, Roberts's noninvolvement on a 50-50 vote would have resulted in no testimony. The advantage, in other words, would go to whichever side was resisting the motion in question.)
The mystery is why neither party chose to ask Roberts the Chase question earlier, when the prospect of a possible tie vote on subpoena questions was very real--which, in retrospect, would have afforded both sides the knowledge of what might happen in the case of a 50-50 vote. I imagine Lisa Murkowski, for instance, wishes that she'd have known about Roberts's posture, which would likely have given her a "green light" to join Senators Romney and Collins in announcing that they'd vote in favor of subpoenas.
Roberts's answer to Schumer's parliamentary inquiry does not, of course, resolve any question about what a Chief Justice can or should do in future trials. It is, however, an interesting bit of historical dicta to add to the Chase precedent.