Examination: John Roberts continues to grapple with Donald Trump as the election draws near
The ex-high-profile legal advisor, previously regarded as the sharpest mind in the room, continues to grapple with the complexities of Donald Trump.
Roberts was taken aback by the fierce public backlash towards his ruling, which granted Trump considerable protection from potential criminal investigations. Clarifying that the case revolved around the presidency, not Trump, failed to change many minds.
Unlike his colleagues, he kept a low profile during the summer months, refraining from public speeches. Those who saw him reported his appearance looked particularly drained, as if carrying an extra burden. During the reopening of court sessions, Roberts maintained his usual composed demeanor.
Presently, America's highest court faces allegations of bias and unaccountability, as contentious judgments continue and debates on an unenforceable ethical code for judges persist.
Roberts, due to turn 70 in January, is confronted with a pile of upcoming significant cases, such as those concerning transgender rights, gun control, the death penalty, and potential Trump-related trials. However, the immediate challenge to his leadership may come from election-related litigations following November 5's presidential vote.
The Roberts Court's alignment with the Republican Party's agenda majorly stems from chief justice Roberts' landmark decisions. For instance, he supported Trump and other Republicans, opposed voting rights and affirmative action, and hindered regulatory control over environmental, health, and consumer affairs issues.
His pro-Republican stance was solidified through prominent court cases, like the 2013 Shelby County v. Holder (abolishing part of the Voting Rights Act) and the 2019 Rucho v. Common Cause (barring courts from halting political parties from manipulating voting districts for their advantage).
This political resonance intensified in the resolution of the case against Trump regarding allegations of election interference in 2020. The court's prolonged involvement, even before announcing its verdict in July, deferred Trump's trial until his 2024 election campaign, where he faced Democratic Vice President Kamala Harris.
The Supreme Court's reputation has suffered, according to numerous surveys. For instance, after the June release of the Trump immunity verdict and conclusion of the annual court session, only 47% of Americans had a favorable view of the court, according to a Pew Research Center poll.
The Court's approval rating had dropped by 23% points compared to August 2020, when the conservative majority established itself on the nine-member bench. The negative shift can be attributed to the court's 2022 ruling on abortion rights, a decision in which Roberts partly disagreed.
Naturally, political leanings influenced attitudes towards the Supreme Court. Republicans held a much more positive view of the Court than Democrats did, as reported by Pew.
In the start of a new term and on the eve of election litigation, the question remains if Roberts will maintain his conservative stance or display flexibility as he has done in previous instances. In 2020, for instance, he modified his stance against abortion rights and bucked opposition to certain protections for undocumented immigrant families.
Clearly, Roberts is aware of his legacy. Back in 2010, he mentioned the prospects of becoming John Marshall or Roger Taney in a public statement, referring to the revered 19th century chief justice and the controversial opinion writer of the 1857 Dred Scott decision.
Roberts declined an interview request from CNN.
Is another Bush v. Gore scenario in the works?
Trump, whose impending legal challenge arises from his 2020 efforts to overturn the legitimate results favoring Joe Biden, has already feasted on a series of untruths pertaining to voting procedures and guidelines. One of his most notorious falsehoods included the claim that Harris could best him only with dishonest tactics.
Scores of Republican-aligned lawsuits challenging election practices are currently being reviewed by lower courts. Significant litigations that could sway the outcomes in the Trump-Harris race are likely to pressure the justices into swift conclusions against tight deadlines.
The specter of another Bush v. Gore controversy looms over the court. In the 2000 case testing who could claim Florida's crucial electoral votes, the court sided with then-Texas Governor Bush over then-Vice President Gore. The 5-4 decision drew along the justices' ideological, though not political, lines.
Roberts, who served in the Reagan and George H.W. Bush administrations and worked for Bush's legal team privately, offered support during the former's legal battles. Following his ascent to the White House, Bush appointed Roberts to a US appellate court. Later, Roberts ascended to the Supreme Court to succeed William Rehnquist, upon whose team Roberts once worked.
In an early interview with C-SPAN, Roberts stated: “It's essential for the public to understand that we are not a political branch of government. They don't elect us. If they are not satisfied with what we're doing, it's simply something they must accept.”
In 2018, when Roberts countered the critical remarks from Trump against federal judges, the chief justice asserted that “we do not have Obama judges or Trump judges,” but “literal judges doing their utmost to serve all fairly and honestly.”
"Well, Justice Roberts, you ain't wrong, you did get some 'Trump judges' on your hands," the former president retorted the same day, "and they got a different viewpoint than those tasked with safeguarding our beloved nation."
This November 2018 altercation, originating from a contentious federal asylum policy, demonstrated Trump's readiness to outdo any perceived opponent. Roberts remained silent on the matter at the time, and he's since steered clear of any comparable public rebuke.
Roberts' supporters argue Trump's immunity decision is misinterpreted
As polarization and public distrust in government escalate, Roberts finds himself in a world far removed from what he might've envisioned when he first took his seat.
During his ascension to court majority for significant decisions in the preceding session, his ability to sway public opinion was deteriorating, as evident in the reaction to the Trump immunity case.
Special counsel Jack Smith has accused Trump of engaging in numerous legislative misdeeds to maintain his position, such as lying to state authorities to disregard genuine vote counts, contriving fake slates of state electors, and inciting a mob to storm the US Capitol on January 6, 2021, where election results were being ratified.
Roberts, accompanied by his five fellow conservatives, concluded that the former president was entitled to presumptive, if not absolute, immunity for actions related to his official duties. Roberts' perspective on official acts was extensive.
However, the chief justice asserted that such a wide-ranging protection was essential to safeguard the presidency's sanctity: “(W)e cannot solely focus on present issues. ... Our viewpoint must extend beyond the present.”
Dissenting justices countered that the majority's reasoning transgressed against established precedent, necessitating accountability for a president.
"Relying excessively on its own misguided wisdom concerning the need for 'bold and unwavering action' by the President, the Court grants Trump all the immunity he sought and then some," wrote Justice Sonia Sotomayor on behalf of the liberal dissenters.
Academics denounced the majority's reasoning, and Princeton history professor Sean Wilentz, in a piece for the New York Review of Books, went as far as to compare the decision to the Dred Scott case. He labelled Trump v. United States "the most extensive judicial redefinition of the American presidency in history."
Roberts' former interns have defended him to varying degrees. Lawyer Erin Murphy, now in private practice, remarked, "I believe a significant portion of the reaction to the decision is somewhat inflated."
During a recent Georgetown University Law Center session, she stated, "The Trump immunity case is less about Trump and more about preventing subsequent administrations from pursuing legal action against previous presidents."
Roman Martinez, also a former Roberts clerk in private appellate practice, maintained the decision was more nuanced than generally perceived.
"There's uncertainty regarding the scope of the immunity," he said. "There are doubts about various aspects of the opinion regarding what it signifies. ... We haven't seen the end yet."
Smith has recast the indictment, highlighting the non-official nature of Trump's election efforts from the previous election, as he now argues before US District Judge Tanya Chutkan that the case can proceed. Chutkan will decide which parts of the Smith indictment can proceed, without violating the court's decision declaring the former president immune from prosecution for official, rather than personal, actions.
Last week, Chutkan published Smith's 165-page motion on Trump's attempts to overturn the 2020 election results. Smith maintains that Trump's challenge of the results stemmed from his private activities as a fervent campaigner eager to maintain the White House.
Harvard Law School professor Richard Lazarus, a close friend of Roberts, spent time with him in July shortly after the Trump decision was announced. They taught together in Galway, Ireland, as part of a New England Law Boston program.
In an August essay for the Washington Post, Lazarus opined that the Roberts opinion "provides a surprisingly clear roadmap for the successful prosecution of Trump."
"The conclusion is clear," Lazarus wrote. "Whether you are incensed by or sympathetic to the surprising breadth of the Supreme Court's presidential immunity ruling, it nonetheless leaves the former president extremely vulnerable to a successful felony prosecution."
Whether this happens is currently out of Roberts and the Supreme Court's hands as Chutkan evaluates new submissions. It might be that Trump's case is genuinely in the hands of the voters.
Following the controversial decision granting Donald Trump immunity from criminal investigations, the Supreme Court's approval rating among Americans significantly decreased. This was evident in a Pew Research Center poll conducted after the release of the Trump immunity verdict, where only 47% of Americans had a favorable view of the court.
The political leanings of the Supreme Court have also been a topic of discussion, with Republicans generally holding a more positive view than Democrats. In a statement, Chief Justice Roberts emphasized that the Supreme Court is not a political branch of government and its judges are not elected, serving all fairly and honestly.
