New Leak Exposes SCOTUS Rift Over Trump Immunity Case
DIVIDED WE FALL
Taking an extreme stance on presidential immunity from the start, Supreme Court Chief Justice John Roberts made no move to negotiate with his more liberal colleagues on the Trump case, according to a new report from CNN. The network reported Tuesday that Roberts didn’t even attempt to persuade the three liberals on the bench to join the majority, all but abandoning the principle of compromise that has guided the high court on similar cases in the past. Instead, he “believed he could persuade people to look beyond Trump,” as CNN put it. Roberts, 69 years old and entering his 20th term as a justice, has become “more aggressive” in his approach to shaping the court, according to the network. He declined to respond to questions about his most recent term and the Trump case. CNN’s report was published a day after it revealed months of fierce disagreements between the justices over its abortion decisions, a leak it framed as part of a forthcoming series.
Roberts made no serious effort to entice the three liberal justices for even a modicum of the cross-ideological agreement that distinguished such presidential-powers cases in the past. He believed he could persuade people to look beyond Trump.
In past decades, when the justices took up major tests of presidential power, they achieved unanimity. Certainly, today’s bench and all of Washington is far more polarized, but as recently as 2020, Roberts was able to broker compromises in two Trump document cases.
It was understandable for outsiders, and even some justices inside, to believe that middle ground might be found on some issues in the immunity dispute and that Roberts would work against any resounding victory for Trump.
The chief justice’s institutionalist tendency had been cemented over the past two decades. He often talked it up, famously admonishing Trump in 2018 that jurists shed their political affiliation once they take the robe, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
The chief justice, now 69 and about to begin his 20th term, appears to have abandoned his usual institutional concerns.
He upended constitutional norms, enlarged the institution of the presidency and gave Trump a victory that bolstered his litigating position even beyond the case at hand, for example, in his attempt to reverse the conviction in his Manhattan “hush money” trial. A jury in May found Trump guilty of falsifying business records.
Roberts’ boldness was perhaps belied by some defensiveness, however, as he devoted five pages (of his 43) in rejoinder to the dissenting justices’ condemnation of his majority opinion. He deemed it “fear mongering” and derided “the tone of chilling doom.”
The immunity dispute before the justices this spring traced to four criminal counts brought by special counsel Jack Smith against Trump. They arose from the former president’s protest of the valid 2020 election results, as he falsely claimed widespread voter fraud, tried to organize fake slates of electors and encouraged a mob to march toward the US Capitol on January 6, 2021, where the election results were to be certified. Nine people, including five police officers, died in the day’s riots and the months that followed.
Roberts avoided references to that day’s chaos and violence as he found new immunity vested in the Constitution for a former president.
The chief justice also took authorship of a separate January 6-related case, testing an obstruction charge levelled against scores of defendants who tried to disrupt the election certification.
Sources familiar with the internal debate told CNN that Roberts believed that he could assert the large and lasting significance of the case and steer attention away from Trump. As he ended up writing in his opinion, “unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies.”
Barrett was the lone justice on the right-wing who tried to close the gap with dissenting justices.
In a concurring opinion, she asserted (notwithstanding signing Roberts’ opinion) that “the President’s constitutional protection from prosecution is narrow,” and tried to suggest how the case could go forward.
She said, for example, Trump’s alleged attempt to organize alternative slates of electors would be “private,” not official, conduct and subject to criminal prosecution. Perhaps, she hoped to influence lower court judges to read the Roberts opinion as more flexible for a future prosecution.
Barrett, Trump’s third appointee to the high court, then outright separated herself from the majority’s view that a president’s official acts could not be put before a jury as evidence of a crime. It was a particularly extreme section of Roberts’ opinion – decided by the kind of 5-4 vote the chief justice usually tried to avoid.
Barrett, in general, may have been trying to situate herself in the middle. On several occasions throughout the annual session Barrett separated herself from her conservative brethren. Notably, she fully broke from them in the Fischer case, when the Roberts majority narrowed the reach of a federal obstruction statute that had been used against scores of January 6 defendants.
“Don’t ever suggest that Roberts ‘tries to be in the ideological middle’ at SCOTUS,” warned MSNBC anchor, and legal contributor and corespondent Katie Phang, responding to the CNN report.
“The chief justice’s institutionalist tendency had been cemented over the past two decades,” Biskupic added. “He often talked it up, famously admonishing Trump in 2018 that jurists shed their political affiliation once they take the robe, ‘We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have it an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.’ “
“The chief justice, now 69 and about to begin his 20th term, appears to have abandoned his usual institutional concerns.”
Alex Aronson, former Chief Counsel to the U.S. Senate Judiciary Committee, now Executive Director of the non-profit organization Court Accountability, appears to agree:
“It’s time for the press and lawyer class to *seriously* reconsider their views about John Roberts as an institutionalist. The man disdains democracy and equality. He has covered up his colleagues’ corruption and turned our Supreme Court into an arm of the Republican Party.”
