Courts

Chief Justice John Roberts Is Not The Man Liberals Want Him To Be

Spoiler Alert: He never was.

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John Roberts President Trump Gives State Of The Union Address

(Photo by Leah Millis-Pool/Getty Images)

Chief Justice John Roberts has spent most of his time on the Supreme Court enjoying a reputation as a centrist. If mainstream Court watchers were honest with themselves, they’d know that Roberts’s “moderate” rep — based largely on his refusal to overturn Obamacare — was always hogwash. But a report from Jodi Kantor and Adam Liptak in Sunday’s New York Times puts none too fine a point on Roberts as a devotee of Donald Trump. The article dives into three cases during the most recent Supreme Court Term, all written by Roberts, and all on Donald Trump’s personal wishlist.

It’s a pretty damning look at what happened behind the scenes at the Court this past Term. Take the immunity case, Trump v. United States. In February, before the case was before the Court, Roberts was already sharing how he thought the Court *would* rule.

The chief justice’s Feb. 22 memo, jump-starting the justices’ formal discussion on whether to hear the case, offered a scathing critique of a lower-court decision and a startling preview of how the high court would later rule, according to several people from the court who saw the document.

The chief justice tore into the appellate court opinion greenlighting Mr. Trump’s trial, calling it inadequate and poorly reasoned. On one key point, he complained, the lower court judges “failed to grapple with the most difficult questions altogether.” He wrote not only that the Supreme Court should take the case — which would stall the trial — but also how the justices should decide it.

“I think it likely that we will view the separation of powers analysis differently” from the appeals court, he wrote. In other words: grant Mr. Trump greater protection from prosecution.

Moreover, the Times reports Roberts “froze out” the liberal justices on the Court as they tried to build consensus.

In Fischer v. United States, the Chief made a shocking switcheroo. He took the majority opinion away from Samuel Alito and wrote it himself.

Outside the court, the switch went undetected. Inside, it caused surprise. To change authors without the judgment itself shifting was a break from court procedure, several court insiders said.

In interviews, Supreme Court scholars agreed. “Can I tell you an instance when it’s happened? No,” said Paul J. Wahlbeck, a professor at George Washington University who has studied opinion assignments.

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This may have been a shallow attempt to save the credibility of the Court. At the time, Alito was catching flack for flying flags associated with the January 6th riots at his homes. Perhaps Roberts thought that letting Alito write that January 6th defendants should be let off the hook was a little uncouth. But don’t worry — the Roberts-penned case held pretty much what you’d have expected Alito to write: that prosecutors overreached in charging some perpetrators of the January 6th coup attempt.

Kantor and Liptak also reveal that the unsigned decision in Trump v. Anderson, which held Colorado cannot kick Trump off their presidential ballot on account of the 14th Amendment’s ban on insurrectionists holding office, was also written by none other than Roberts.

None of these moves are the machinations of a centrist. They are the calculated plays of someone actively trying to push the nation’s jurisprudence to the right — beyond what the majority of Americans support.

With Roberts clearly dethroned from his ostensible role as the “very serious moderate” on the Court, it *should* supercharge the efforts to reform the institution. But even before this exposé, the hunt was already on for a “new” swing vote on the Court that can be pandered to in order to stop the absolute worst SCOTUS power grabs. It’s like we never learn.

Earlier: John Roberts Will Not Save Us

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Kathryn Rubino HeadshotKathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

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