Chief Justice Roberts, a Mountain, and some Molehills
My reaction to The New York Times exposé about the chief justice
I’m Isaac Saul, and I’m the executive editor at Tangle where I write an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.” For more political analysis like this, subscribe to Tangle here!
On Sunday, The New York Times released a behind-the-scenes report on Chief Justice John Roberts’s role in crafting three Supreme Court decisions relating to January 6. In the piece, authors Jodi Kantor and Adam Liptak reported on leaks from inside the court describing Robert’s actions on the blockbuster cases, which all carried significant legal and political ramifications: Trump v. Anderson, Fischer v. United States, and Trump v. United States. Chief Justice Roberts, who wrote the majority opinion in each instance, took uncommon steps to guide the cases, according to Kantor and Liptak.
This piece is well-reported
Let me start with a bit of media commentary: I have followed Adam Liptak’s reporting for years. Throughout his career, I’ve found him to insightfully weigh in on court rulings, thoroughly report out investigative pieces, and generally keep his head about him. When I think of the few dozen most prominent reporters in the media, I can usually think of (at least) one big mistake or controversy they have been enmeshed in. For Liptak: Zero. He co-wrote this piece with Jodi Kantor, whose work I am less familiar with (she is well-known for breaking open the Harvey Weinstein story), but Liptak’s record is as good as it gets; he has owned this beat for years.
Therefore, I’m inclined to believe that this piece — despite coming from a decidedly liberal institution like The New York Times — was carefully reported. Which makes the main story pretty stunning.
A lot of people panicked when the Dobbs decision was leaked to the press, but the breadth of these leaks seems far more serious to me: They include insights into the most sensitive and specific parts of the court’s decision-making process, which means Liptak and Kantor have managed to penetrate what is supposed to be an impenetrable space. While I certainly appreciate the insights provided by these leaks as a journalist seeking to understand the court, it’s not a good sign for the court itself.
Starting from a position of credulity, I have two big takeaways from this piece: 1) Most of it feels to me like making a mountain out of a molehill, and 2) One specific part of the reporting seems far more significant and frightening than anything else.
Much of the piece discusses innocuous content with a grave tone
To the first point, I think much of the piece covers what could be perfectly innocuous happenings with a rather grave tone. Take Trump v. Anderson, the case where Trump was kept on the Colorado ballot. I don’t have a law degree, but I predicted the outcome of the case before it was heard because the outcome was rather obvious. All this story adds is that Roberts consulted each justice individually on the case (which seems like part of his job, even if he doesn’t do it for every case) and then pushed for an unsigned opinion (which doesn’t seem like a big deal since the ruling was unanimous).
In Fischer v. United States, Liptak and Kantor reveal that the author of the majority opinion was changed from Alito to Roberts four days after the flag controversy broke. We don’t know why it changed, but the authors link it to that controversy. Yes, this is unusual. Yes, it raises some questions. But I don’t really see the problem. It was still a 6–3 ruling with Justice Jackson joining the conservatives, Justice Barrett joining the liberals, and the case going back to the lower courts. Roberts gave the complicated and unprecedented case a complicated and nuanced ruling — and one that I agreed with, by the way (though it’s the only case here we didn’t cover). As with the Colorado case, Roberts essentially just did something uncommon but innocuous.
Roberts’s handling of Trump’s immunity case worried me
What did worry me, though — grievously — was the reporting on how Roberts handled Trump’s immunity case. What we learned from this reporting is that conservative justices on the court (including Gorsuch and Thomas) wanted more time to properly analyze the case, while the liberal justices (persuasively) argued that they shouldn’t take the case up. After all, it could have fallen apart, Trump could have been found innocent, or he could have been convicted and appealed the verdict.
Instead, Roberts expedited the case, insisting it be heard in the spring term. He took the lead, despite being overextended on a blockbuster term already. He believed he could write a grand opinion for the ages that would exist above the political fray (how naive can you get?), and then he fumbled the ball. He wrote a poorly written, disjointed, hard-to-interpret opinion on arguably the most important case before the court last spring, and — as I’ve argued here and here and here — the court got it completely wrong. The ruling will either unnecessarily expand a presidential power that is already too far-reaching, or result in a slew of convoluted and contradictory rulings.
This part of the story reeks of someone more worried about their own legacy than the law, more interested in the court inserting itself than playing passive referee, which is its job. And, crucially, it’s the strongest evidence we have that Roberts thumbed the scale in a way that helped Trump — even above the objections from the court’s most conservative and liberal justices, who pushed back for different reasons with their own merits.
However, I don’t think Roberts was motivated explicitly by wanting to help Trump — instead, that outcome seemed like a consequence of Roberts’s motivations. Quotes from the court’s conservatives show that they seemed determined not to weigh in on details concerning Trump: “I’m not discussing the particular facts of this case” (Justice Alito) and “We’re writing a rule for the ages” (Justice Gorsuch). But when you consider that Roberts pushed the court’s conservatives by taking up this case and then insisted on penning an inscrutable opinion to represent their position, you get a worrisome picture of the chief justice.
A troubling picture of Roberts hurts the Supreme Court
To me, that picture — of a chief justice unwilling to listen to his colleagues, singularly concerned with the court’s legacy, and so overwhelmed he penned an opinion even his most well known clerk would then criticize as poorly written — that picture worries me a great deal.
All of this will further harm the court’s already tattered reputation and raise even more suspicion among liberals that the court has been corrupted by the very politics Roberts says he is trying to avoid. It will, in a very real sense, further erode whatever trust is left in an institution that relies on the people’s belief in it.
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