The Supreme Court’s toughest cases during Chief Justice John Roberts’ tenure have often generated internal suspense, with shifting votes, last-minute switches and the chief’s own push toward compromises that would lessen the appearance of politics.
Not so this spring, when the six Republican-appointed conservatives established a far-reaching immunity from prosecution for former President Donald Trump.
Sources familiar with the negotiations told CNN there was an immediate and clear 6-3 split, as the justices met in private in the oak-paneled conference room that adjoins the chief justice’s chambers.
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 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.
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 may also have sensed that the liberals were simply not going to accept any version of his sweeping presidential immunity. 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.”
Roberts declined to respond to CNN’s questions about the recent term and this case.
All told, Roberts appears to have reached a turning point. His vision for the high court became more aggressive, and he has perhaps shed the aura of ineffectualness that permeated some public commentary in recent years.
He kept the most important cases for himself, including one that reversed a 1984 precedent giving federal regulators considerable power over health care, food and drug safety, the environment and consumer affairs. (As chief, Roberts makes most opinion-writing assignments; he regularly keeps important cases, but in the past has shared more and evened out assignments among the eight associate justices.)
At the same time, his dealings with his conservative colleagues were more agreeable.
People close to justices on the far-right told CNN those justices were heartened by Roberts, after years of suspicions about his efforts at the center of the bench, most famously with his switched vote in 2012 that upheld the Affordable Care Act.
This exclusive series on the Supreme Court is based on CNN sources inside and outside the court with knowledge of the deliberations.
Roberts claiming power
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.
That case, Fischer v. United States, was heard a week before the Trump immunity dispute. Under normal circumstances, a case from the same April session would have been assigned to another justice, perhaps in this situation Samuel Alito, a former prosecutor who dominated during oral arguments and agreed with Roberts on the outcome favoring January 6 defendants.
In Fischer, Roberts tersely related the events of January 6, 2021: “As set forth in the criminal complaint … some of the crowd eventually ‘forced entry’ into the building, ‘breaking windows,’ and ‘assaulting members of the U.S. Capitol Police.’ This breach of the Capitol caused Members of Congress to evacuate the Chambers and delayed the certification process.”
As the justices were drafting opinions, the court hewed to age-old routines. Law clerks arranged their traditional end-of-term skit for late June. Roberts and Justice Clarence Thomas continued with their planned reunions of former law clerks. And Roberts, for the first time in several years, readied to teach in a summer program abroad sponsored by New England Law Boston in Galway, Ireland.
Justices weren’t in a hurry to hear the case
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The immunity case first arrived at the justices’ door in December. Seeking to move the prosecution along, Smith had tried to persuade the court to take early review of the case, before US appellate court action. After the US appellate court ruled, Smith urged them to let the decision – which had spurned the Trump claim of immunity – stand.
Both efforts by the special counsel were in vain. Sources told CNN that there was broad understanding among the justices that they would need to decide the matter themselves, and only after the usual appellate court hearing.
The justices’ decision not to hold arguments until late April, however, compressed the time for negotiations among the nine. That April consideration also meant that by the time the case was put to a vote, on April 26 nearly 60 other cases had been decided and the justices knew how deep the ideological and political divide was.
(The number of cases decided by 6-3 votes jumped this year, according to statistics compiled by Adam Feldman and Jake Truscott of EmpiricalSCOTUS. Of the total 22 cases decided by 6-3 votes, 11 were along the familiar conservative-liberal lines. They also found that Roberts was most frequently in the majority during the session at 96.6%.)
The justices during the nearly three hours of varied questions in the multi-faceted case on April 25 suggested a certain measure of vindication for Trump on some of his lower court loss, but not without acceptance of some of the arguments from the special counsel.
In their private session on the case the next day, however, the votes on the core issue lacked any ambiguity and Roberts was ready to write with bold strokes that a former president is entitled to presumptive, if not absolute, immunity for all official acts. Further, Roberts’ construction of official acts, as opposed to private ones, was extensive.
The sharp divide between liberals and conservatives meant that virtually all of Roberts’ negotiating would be among his people on the right.
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.”
Roberts, likely influenced by his experience in the Ronald Reagan and George H.W. Bush administrations, has long favored robust presidential authority in the separation of powers. He, like Justice Brett Kavanaugh who served George W. Bush, perhaps considered the possible legal vulnerability from episodes such as the Iran-contra affair in the Reagan years or the Bush-era torture memos for interrogations after the September 11, 2001, terror attacks. Roberts made clear that he worried about routine prosecutions of ex-presidents and “a cycle of factional strife,” as he put it.
Just two years ago, Roberts separated himself from fellow conservatives as they formed a five-justice majority to overturn Roe v. Wade and constitutional abortion rights. He stood alone in that case of Dobbs v. Jackson Women’s Health Organization, failing to win a compromise with the justices on his right who wanted to completely gut Roe and those on his left who wanted to preserve the 1973 landmark.
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Roberts wrote at the time.
Liberal justices turned that mantra against the chief justice in the recently completed term. They invoked it explicitly in the first Trump controversy, involving a Colorado ballot-access test, to protest the expansive Roberts’ opinion favoring the former president.
Then, in the Trump immunity decision on the last day of the session, liberals repeatedly asserted that the majority had gone beyond the questions necessary to decide the case.
“(T)he Court gives former President Trump all the immunity he asked for and more,” Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, declared.
Barrett tries to close the gap
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.
The only other justice on the majority side to write separately was Thomas. He fully joined Roberts’ opinion but then questioned the constitutionality of the special counsel’s office. Trump’s lawyers had not challenged Smith’s appointment in this case, and it had been raised by only Thomas during oral arguments.
Thomas’ solo statement has already had some influence. Earlier this month, US District Judge Aileen Cannon, a Trump appointee, relied partly on that Thomas opinion as she threw out the classified documents case against Trump.
Thomas, the longest-serving justice on the bench and arguably the most conservative of the nine, has become more influential over the years, to the point that some commentators have declared him more powerful than Roberts.
Not this year, so very unlike 2022, when Thomas and other conservatives pushed through the Dobbs ruling and Roberts stood alone between embittered factions. The chief justice chided his colleagues on both sides for displaying “a relentless freedom from doubt on the legal issue.”
This year, he stepped to the right, and he displayed no doubt.
The-CNN-Wire
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