How the Roberts Court became the Trump Court
By Joan Biskupic, CNN Chief Supreme Court Analyst
(CNN) — Chief Justice John Roberts’ 20 years on the Supreme Court have been punctuated by a series of vivid episodes, from his confirmation hearings as he vowed merely to call “balls and strikes,” to his dramatic switched vote to preserve the Affordable Care Act, to his weeks presiding over the televised impeachment trial of President Donald Trump.
But the moment most central to Roberts’ legacy occurred in the courtroom shielded from cameras on July 1, 2024.
Seated at the center of the elevated bench, Roberts declared the American president immune from criminal prosecution. It was a milestone decision providing new power for all presidents and, at the time, possibly changing the course of a presidential election.
“I think it was a turning point,” said Boston University law professor Jed Shugerman of Roberts’ stewardship of the high court. “Roberts played a role not just in terms of the decision but in navigating the timing” that foreclosed a Trump trial.
For 14 minutes in an otherwise silent courtroom, Roberts defended the decision before scores of spectators that included the government lawyers who’d brought the case, luminaries of the appellate bar, journalists, and such special guests as Roberts’ wife, Jane, and Justice Brett Kavanaugh’s parents.
The chief justice insisted substantial immunity would ensure the nation’s chief executive could operate “fearlessly and fairly,” free from “hesitancy and weakness.”
He acknowledged that dissenting justices were predicting the decision in Trump v. United States diminishing accountability would lead to “dire consequences.” But Roberts, trying to lift the case beyond Trump, insisted that without such immunity, all presidents would “scrutinize every moment of the prior four or eight years and prosecute” their predecessors.
As Roberts hits the 20-year mark this month – the fourth longest-serving chief justice in US history – it is striking how relevant Trump v. US remains and how many pivotal moments of Roberts’ tenure have intersected with Trump.
Chief justices and presidents have predictably clashed in recent decades, but conflicts since the era of Franklin D. Roosevelt have tended to be intermittent. The extraordinary relationship between Trump and Roberts is distinct for its duration and depth. The Supreme Court’s current docket is overwhelmed by Trump-related disputes, and those cases – the result of scores of legal challenges to Trump’s executive orders – have dramatically altered the justices’ routines and their attitude toward lower court judges.
On a personal level, Roberts has chafed at Trump, even as the chief justice, with his expansive view of executive power, has sided with him. Trump has alternately criticized and extolled Roberts, depending how cases go, since 2012 when Trump scorned Roberts’ decision to uphold Obamacare. (“I guess Justice Roberts wanted to be part of Georgetown society more than anyone knew,” Trump wrote in a social media post at the time.)
The Trump immunity case began after special counsel Jack Smith secured a grand jury indictment of Trump for conspiring to overturn the results of the 2020 election. Smith asked the justices in December 2023 to expedite their consideration of whether Trump should be shielded from prosecution. But the justices turned down Smith, leaving the case to be first heard by a US appeals court, which ruled against Trump.
When the justices finally resolved the dispute in July, their complex test for assessing various elements of Trump’s conduct, along with the election-season calendar, ensured no trial would occur before the November contest between Republican Trump and Democratic Vice President Kamala Harris.
Since his return to the White House, Trump has used the 2024 immunity decision and a series of new rulings to remake America, through mass government firings, control of public funds, and broadscale deportations.
“The decision already has prefigured in Trump’s unprecedented assertions of presidential authority,” Columbia Law Professor Gillian Metzger wrote in April of Trump v. US. “Even as Trump threatens to turn his Administration on his enemies, the decision makes clear that he need not worry much about criminal liability for any official acts during his second term.”
Metzger told CNN that the ruling “laid the groundwork for very, very bold assertions of executive power that we are certainly seeing.” Beyond the firing of officials at independent agencies and the withholding of appropriated funds, Trump this month undertook legally questionable action with the US military against drug cartels.
And as the Roberts Court has empowered the president, Trump’s moves have shaped the contours of Roberts’ image in the public eye, in cases and in off-bench episodes.
Roberts presided for three weeks over the historic Senate impeachment trial of Trump in early 2020, with cameras constantly trained on him. More recently, Americans saw Roberts on January 20 as he administered the oath of office to Trump in the Capitol Rotunda and, most recently in March, when Trump warmly thanked Roberts and patted him on the shoulder after an address to a joint session of Congress.
“Thank you again. I won’t forget,” Trump told Roberts.
After commentators speculated that Trump was expressing gratitude for the immunity decision, Trump posted on Truth Social, “I thanked him for SWEARING ME IN ON INAUGURATION DAY, AND DOING A REALLY GOOD JOB IN SO DOING!”
Still, Trump has repeatedly thanked the Supreme Court for ruling in his favor. The White House website tallies the administration’s victories at the high court – 21 since he returned to office.
In earlier years when he lost, Trump blasted the justices. When they declined to take up a challenge to Democrat Joe Biden’s presidential victory in December 2020, Trump wrote on social media, “The Supreme Court really let us down. No wisdom, No courage!”
Trump’s reshaping of the high court
Trump, by virtue of his three appointments in the first term, transformed the Supreme Court.
After decades as a 5-to-4 conservative-liberal bench, Trump’s 2020 appointment of Amy Coney Barrett to succeed Ruth Bader Ginsburg cemented a new 6-3 conservative majority that began overhauling the law in America. The court in 2022 reversed Roe v. Wade, which had ensured constitutional abortion rights for nearly a half century.
But the new supermajority has also altered the rhythms of how the justices deal with each other. The right-wing side of the bench now has a spare justice (it takes five to seal a ruling in a case), and conservatives appear to have less incentive to work for common ground at the center.
Roberts, for example, lost control of the Dobbs v. Jackson Women’s Health Organization opinion in the abortion-rights case. He did not want to completely overturn a woman’s right to end a pregnancy but was outvoted by the five other justices on the right.
The three remaining liberals, meanwhile, with less leverage, are increasingly frustrated and ready to vent their anger.
The justices’ respect for each other’s views appears to be dwindling. They have been taking sharper shots at each other in opinions. During oral arguments, some justices turn away, looking uninterested, as their colleagues speak.
The Trump immunity case offered a prime example of the justices’ inability to work together as they had in the past. When the court previously faced a major separation of powers dispute, such as over President Richard Nixon’s claim on the Watergate tapes in 1974, the justices closed ranks and strove for a unanimous compromise.
Soon after the justices took a private vote in the Trump immunity controversy, in spring 2024, conservatives and liberals divided into their separate camps, with no attempt to cross over during the weeks of negotiations.
Those divisions played out in the courtroom as Roberts’ spent part of his bench statement denouncing the dissenting liberals, and Justice Sonia Sotomayor, for the left, spoke twice as long as Roberts, declaring, “Argument by argument the majority invents immunity through brute force.”
She related to spectators the litany of Trump’s efforts as he falsely sought to claim victory in the 2020 election. But Sotomayor trained much of her heat on the Roberts majority, saying, “the court gives former President Trump all the immunity he asked for and more.”
Roberts’ long game
Roberts, who still speaks of his original plan at Harvard to earn a history PhD rather than law degree, has long calibrated his moves and played a long game.
Michael Klarman, a professor of American legal history at Harvard Law School, said that Roberts’ legacy “depends on what happens next,” for the chief justice, Trump, and the country. Yet Klarman also criticizes Roberts for “appeasing the autocrat,” and adds, “The basic lesson of the 20th Century is that doesn’t work.”
In his first decade, after his September 2005 Senate confirmation, Roberts’ opinions on intensely fought social dilemmas stood out.
The appointee of President George W. Bush voted against school integration plans, university affirmative action, and a key part of the 1965 Voting Rights Act. His mantra, expressed in a 2007 case: “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Roberts also opposed same-sex marriage, presenting his first and only dissent from the bench in the 2015 case of Obergefell v. Hodges. Dissenting justices typically leave their views to the printed page. Only when a justice feels especially passionate about a position, and seeks attention for it, does he or she opt for an oral dissent before the courtroom audience.
Still, Roberts also saved the Obama-sponsored Affordable Care Act in 2012, after intense negotiations and multiple switched votes that incurred the wrath of the chief’s fellow conservatives who fell into dissent.
Once Trump burst on the national scene, the litigation he generated presented a new category of challenges for the Supreme Court, tied to executive authority and the constitutional separation of powers. Roberts, since his early days serving the Reagan administration, had argued for expansive executive power.
Resolving the first major controversy of Trump’s first term, the court upheld a travel ban focused on Muslim-majority countries. Roberts wrote the opinion that emphasized the president’s authority to exclude certain immigrants and that declared irrelevant Trump’s derogatory statements about Muslims during the campaign.
Perhaps one notable example of Roberts casting the decisive vote to block a Trump effort came as he joined with liberals in 2019 to forbid the Department of Commerce from adding a citizenship question to the decennial census. The following year, he aligned with the same four liberals to reject Trump efforts to end a program giving immigrant children brought to the US without proper papers work authorization and protecting them from deportation.
Any ambivalence evaporated when Roberts steered the case that prevented Trump from being held accountable for his actions challenging the 2020 election results. The Roberts majority ruled that a president’s actions arising from “core” powers were absolutely immune and that actions within “the outer perimeter” of his official responsibilities were presumptively immune; only unofficial conduct could be prosecuted.
Since then, Roberts and fellow conservatives have voted to reverse lower court decisions, at least for the time being, on a series of Trump deportation policies, his ban on transgender troops in the military and the firing of a series of leaders at independent agencies. The three liberal justices have consistently protested the pattern.
When the same six-justice conservative bloc in late June drastically curtailed the ability of lower court judges to block, through injunctions, Trump executive orders, the liberal dissenters subtly invoked Trump v. US.
Sotomayor, joined by Elena Kagan and Ketanji Brown Jackson, wrote, “Simply put, it strains credulity to treat the Executive Branch as irreparably harmed by injunctions that direct it to continue following settled law.”
Sotomayor then quoted a line from an 1882 case that stands for the proposition that “All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”
Then she added simply, “but see Trump v. United States.”
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