99. Optics Over Politics: Chief Justice Roberts and the Trump/January 6 Cases

New reporting from the New York Times raises some troubling questions about how (and how much) Chief Justice Roberts understands the Supreme Court's relationship with the public.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. 

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already): 

This week’s “Long Read” was prompted by truly remarkable reporting in Sunday’s New York Times, via Jodi Kantor and Adam Liptak, about the justices’ behind-the-scenes machinations in the three major Trump/January 6 cases the Supreme Court heard earlier this year. The Times story breaks a few big pieces of news that we didn’t already know, and provides a lot of additional color for what we already suspected. But the real focus of the piece is Chief Justice John Roberts.

Just after the Court rose for its summer recess, I wrote about how, for me, the defining theme of the term had been Roberts’s sharp turn “to the right.” What Sunday’s Kantor/Liptak piece drives home is that Roberts wasn’t pushed to go that way; he pushed the Court—in ways that suggest not that Roberts was indifferent to public opinion (as some of his defenders have argued), but that he radically misjudged what that public opinion would be.

But first, the news.

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On the Docket

This will be short: the full Court didn’t hand down a single order last week.

Historically, the lack of business is unsurprising; this is the time of year when the justices are usually gearing up for their end-of-summer “Long Conference” (two weeks from today) and the beginning of the October sitting (three weeks from today). But the justices are still sitting on at least 20 different emergency applications—including eight consolidated challenges to the EPA’s new power-plant emissions rules in which the responses were filed four weeks ago today. Last year, the Court sat on the “Good Neighbor” applications for almost seven weeks before … deciding to hold oral argument on them. I wonder if we’re heading for a similar denouement here? Either way, it sure seems to undermine the idea that these cases warrant “emergency” relief when the Court ends up being in no hurry to decide them.

The only other new emergency application of note is from the Nevada Green Party—represented by Jay Sekulow (who has often represented former President Trump)—seeking emergency relief against a ruling by the Nevada Supreme Court that kept the NGP off of the Silver State’s presidential election ballots. (The politics here are … obvious?) Justice Kagan ordered a response to the application by 4 p.m. (ET) tomorrow, so it’s possible we’ll get a quick ruling there. Otherwise, it could be another (publicly) quiet week for the Court.

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The One First “Long Read”:
Chief Justice Roberts and the Trump Cases

The Kantor/Liptak story is a remarkable piece of reporting—including the details of internal memos circulated by the Chief Justice and various other inside-the-Court conversations to which we had not previously been privy. There’s a story simply in that fact (more on that shortly). But first, it seems worth fleshing out what I see as the biggest pieces of “news” in the piece—before pivoting to what we ought to take away from it.

The “News” in the Times Piece

First, in the Colorado ballot disqualification case, the piece reports that there had been broad consensus on the Court from early in the proceedings that the justices were going to reverse. This is hardly surprising given how the oral argument went (and the ultimate decision the Court handed down), but it helps to explain, among other things, why the justices moved so quickly to hear and decide the case (especially in contrast to the immunity case—more on that shortly).

Second, the piece reports that Chief Justice Roberts had at least tried to push for a unanimous ruling in the Colorado case (we know how that went). But it also makes clear something we had only suspected—that the majority opinion quite deliberately went further than the other four justices were willing to go with an eye toward former President Trump’s potential re-election. Specifically, the majority held that Congress can enforce Section 3 only through a (new) statute. Although the opinion didn’t expressly foreclose Congress from enforcing Section 3 through other means (e.g., by refusing to certify electors because of a claimed disqualification), the reporting sure makes it seem like that was the intent (and, also, the reason why the five justices in the majority weren’t able to keep the four concurring justices onsides). Among other things, this reinforces a point I had made in my earlier piece about Roberts—he was squarely in the middle of two four-justice blocs—and he picked his side.

Third, turning to the Trump immunity case, Kantor and Liptak report on a confidential memo Roberts circulated to his colleagues on February 22, which offered, in their words, a “scathing critique” of the D.C. Circuit’s ruling and his view that the Court “will view the separation of powers analysis differently.” Some commentators have suggested that the memo itself is news—and that it’s unusual for a justice to circulate views like those in advance of hearing a case. But the timing suggests that the memo was something else entirely—Roberts’s proposed resolution of Trump’s then-pending emergency application to stay the D.C. Circuit’s mandate in the immunity case pending a forthcoming (and, as of then, not-yet-filed) cert. petition. Trump’s application had been filed on February 12; Roberts, as Circuit Justice for the D.C. Circuit, had called for a response by February 20; and the briefing on it was complete by that date. The Circuit Justice circulating a memo to the full Court two days later is right on the ball, timing-wise. (It’s also another good data point for how emergency applications are pushing the justices to firm-up their views on the merits at very early stages.) At least procedurally, a memo from Roberts is exactly what I would’ve expected.

Instead, the news to me is two things relating to the memo: (1) That Kantor and Liptak were given (at least some) access to it; and (2) that, in response, Justices Thomas and Gorsuch thought it would “drag the Court into political battles” if the justices heard the case before this October. I’ll come back to both of these below. Those are both quite newsworthy…

Fourth, although the oral argument very much provided a preview of the ultimate split we saw in the final ruling on July 1, Kantor and Liptak report that, once the drafting of the opinion in the Trump immunity case was underway, Roberts “froze” the Democratic appointees out—despite apparent efforts at an olive branch from Justice Sotomayor. As in the Colorado ballot disqualification case, it’s another revealing data point pushing back against the “Roberts was pushed to the right” narrative. There was, it seems, no compromise he wanted to pursue.

Fifth, and turning to the January 6 obstruction case (which is where what struck me as the biggest news is centered), Kantor and Liptak report that Justice Jackson changed her vote in Fischer well after the Conference—suggesting that the initial vote was 5-4 to reverse (with Jackson joining Sotomayor, Kagan, and Barrett in dissent). According to the article, in exchange for joining the majority, Jackson was able to push the other five justices toward a narrower opinion—one that limited the scope of the criminal obstruction statute used in so many of the January 6 prosecutions, but that very much left open the possibility that many of the same charges could be upheld on remand. Jackson’s vote wasn’t necessary to the result (a point that has befuddled some commentators about why she was able to have any leverage), but some of the justices in the majority might well have appreciated having a Democratic appointee join at least one of the term’s most significant and politically divisive majority opinions. (Note also that Jackson’s opinion is a concurring opinion, not a concurrence in the judgment—so she endorsed the majority opinion in full.)

Sixth, and perhaps most stunningly, Kantor and Liptak report that the majority opinion in Fischer had originally been assigned to Justice Alito—only for the Chief Justice to take it back from him on May 20—more than a month after the justices would’ve voted on the outcome and the initial assignments would’ve been made. It’s certainly not unheard of for justices to lose majorities; Alito himself lost at least two other majority opinions—Gonzalez and NetChoice—during the same time period. Such a mid-stream reassignment can happen any time that the opinion the assigned justice circulates fails to hold at least five votes.

But I am not aware of a single previous case in which a justice wrote a majority opinion and then had it taken away while he remained in the same majority. Kantor and Liptak note that the timing coincided with the flag imbroglio surrounding Justice Alito—a story that Kantor had broken on May 16 (which was a Thursday, so the case was reassigned the following Monday). To their credit, Kantor and Liptak are clear that the timing is only “a possible clue”; none of their sources apparently provided insight into the seemingly unprecedented reassignment. But I’ll just say that I haven’t been able to think of any other explanation. It’s not like Alito was overloaded with assignments (thanks in part to losing other majorities). And the fact that he did not write a separate opinion in Fischer (as he did in both Gonzalez and NetChoice) underscores his seeming agreement with the opinion the Chief Justice ultimately put his name on. Thus, it certainly seems like the Chief Justice exercised one of the few powers he possesses over the other justices to keep Alito’s name off of the Court’s ruling in favor of a number of January 6 defendants at about the same time that the Alitos were making the wrong kind of January 6-related news.

My Big Takeaways

1. Lots o’ Leaking: Kantor and Liptak’s reporting is based on a whole bunch of different leaks of what are usually closely held internal deliberations. It’s not just the Roberts memo (something we usually have no awareness of until the justices’ papers become available years, if not decades, after their deaths); it’s also the very specific details on timing, which Roberts clerks were working on the immunity opinion, and lots of other tidbits that could come only from inside a very small group of individuals. None of this, in my view, holds a candle to the Dobbs leak—a draft majority opinion leaked to the press and public while it is being debated and finalized. But this story wouldn’t have been possible without both excellent reporting by Kantor and Liptak and a whole lot of dissatisfaction inside the building—perhaps from some of the justices themselves.

2. Treating the Court Like any Other Political Institution: Regular readers of this newsletter will know of my longstanding frustration with how many—if not most—public conversations about, and even reporting on, the Court are structured. I’m struck by how much pieces like this one reflect an overdue shift in the tenor of Supreme Court coverage—toward pieces that are less about summarizing the Court’s carefully manicured output and more about the behind-the-scenes stories on how the Court is reaching its decisions. If the paper of record’s own Supreme Court reporters are engaged in this kind of effort to show the public how the Court functions (or doesn’t) behind the scenes, that’s a positive journalistic development in my view—no matter what that reporting reveals.

3. The Good Ship Roberts: Mine wasn’t the only piece over the summer that was sharply critical of Chief Justice Roberts—or that called into question how much he actually does worry about public perception of the Court in contexts in which he has some control over events. What the Kantor/Liptak piece drives home is that he does worry, but only to a very superficial degree. Thus, it was important to Roberts for the immunity case to be heard this term—even if he knew which way it was going to come out. It was important to Roberts for the Colorado case to be unanimous—until he couldn’t get the justices to his left to go as far as he wanted. It was important to Roberts to take Alito’s name off of Fischer—even though it wasn’t important enough to leverage him to recuse, or to so much as acknowledge, at any point in his majority opinion, the deeply fraught, conspiracy-laden narrative into which the Court was necessarily wading. Ultimately, it’s not high constitutional politics driving the bus; it’s optics. And as these episodes underscore, those just aren’t the same thing.

4. Speaking of Optics Over Politics…: And then there’s the remarkable push from at least Justices Thomas and Gorsuch (the story doesn’t mention Alito on this point) to not even hear the Trump immunity case this term. Kantor and Liptak attribute to Thomas a concern over the Court being dragged into political battles; and to Gorsuch a concern about giving the parties time to fully develop their arguments. Both of these are, frankly, bollocks. Once the Court made up its mind to intervene (as, apparently, it had by no later than the day after Roberts circulated his memo), there was no way to not get involved in a “political battle.” The question was how to do it in a way that didn’t clearly favor, or be seen to favor, one side over the other—at least without a really good reason. The timing the Court ultimately adopted—holding argument in April and a decision before the summer recess—was a compromise between the Special Counsel’s push to have the Court move even faster (as it had done as recently as … the Colorado ballot disqualification case, where the same justices had no trouble getting dragged into a political battle) and Trump’s desire to delay as long as possible. That Thomas thought that delay wouldn’t be seen as a profoundly political move is … alarming. As for Gorsuch and preferring to give the parties time to fully develop their arguments, well, that would be more persuasive from a justice who wasn’t so regularly voting to grant certiorari before judgment (as in the EMTALA cases) and/or emergency relief—deciding major statutory and constitutional issues without the usual percolation. One would think the gravity of the Trump cases called for dispatch relative to those other matters, not the other way around.

5. The Messy Bottom Line: All of this leads to a discomfiting conclusion: This is a Court that is well aware of the political storms surrounding it (and, in some cases, for which it is responsible), and is not simply pulling in its oars. No one in Kantor and Liptak’s reporting is arguing for even a modicum of judicial restraint; and none of the justices to the right of Justice Barrett seem at all worried about the institutional impact of continuing to divide so transparently along partisan and ideological lines in the Court’s highest-profile (and themselves politically charged) rulings. What all of that suggests is that this is all going to get worse before it gets better—and that any arguments that the Court has somehow gotten past the nasty, bitter, and highly charged infighting that has characterized the past few terms are wanting for any basis in reality. This Court isn’t going to fix itself; perhaps we ought not to sit around waiting.

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SCOTUS Trivia: Ignominious Opinion Authors

The authorship shift in Fischer gives me an excuse to flag one of my favorite academic exchanges—the early 1980s back-and-forth between Professor David Currie and Professor-turned-Judge Frank Easterbrook over which Supreme Court Justice deserved the title of “Most Insignificant Justice.”

Currie and Easterbrook both attempted, through different academic and statistical methods, to measure the impact of justices by what they had written over their tenures (excluding, of necessity, justices whose tenures had been relatively brief). Currie’s ultimate pick was Justice Gabriel Duval[l],¹ a Marylander who served on the Court from 1811–35, and whose written contributions to the constitutional law rulings of the Marshall Court ran a total of three words. In all, Duval[l] penned a total of 18 opinions during his 23-year career.

Easterbrook, taking a less subject-matter-specific look at the justices’ insignificance, ended up casting his vote for Duval[l]’s long-time colleague—Justice Thomas Todd of Kentucky.² Todd served from 1807–26, and was responsible for a total of 14(!) opinions in his 19 years on the Court, almost all of which were brief resolutions of land tenure disputes. The Currie-Easterbrook exchange is quite a fun read—two brilliant legal minds having at it over what it means to be an “insignificant” justice (and how to best measure it). But my favorite trivia about their subjects is about Todd—in a way that might lend more support to Currie’s bottom line: According to the White House Historical Association, the first wedding ever held at the White House was Todd’s March 1812 wedding to his second wife—Lucy Payne Washington, the younger sister of then-First Lady Dolley Madison and the widow of one of President George Washington’s nephews.

Whatever that says about Todd’s significance in early-18th-century Washington society, one can only imagine what would happen today if a Supreme Court justice had a White House wedding…

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1. There is a rich debate even as to whether Duval[l] spelled his name with one l or two. I won’t rehash the details here.

2. Both Duval[l] and Todd were slaveowners.