Chief Justice John Roberts at the State of the Union address. (photo: Getty)
The chief justice stood up to Trump, placated Democrats, and scored indisputable points for judicial supremacy.
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will be much discussion in the coming weeks about the revelations of
the Supreme Court’s COVID-19 term. But perhaps more than anything, we
should focus on the battle of the titans that has played out this year
between Chief Justice John Roberts and President Donald Trump. It
certainly has been a years-in-the-making enterprise: Roberts was showing
signs of Trump fatigue by the end of last term, and his frustration
with the Trump administration’s shoddy lawyering and outright
fabrication was evident by the time he thwarted the administration’s effort to put a citizenship question on the census. It’s fair to say that, by this time last year,
it was clear that Roberts, a lifelong conservative, was—unlike many
other lifelong conservatives—not prepared to give up on every
institutional and ideological principle he’d ever held in order to cater
to Trump’s tempestuous whims. It was also clear that Roberts would
prioritize public respect for the Supreme Court and the federal
judiciary over short-term gains for the president and his party.This was evident not just in his judicial writing. It was clear when he punched back at Trump’s claims that there were “Trump judges and Obama judges” and again when he defended judges (including Merrick Garland) in his annual state of the judiciary report this past winter. It was also why we didn’t think Roberts would rush to intervene dramatically in the impeachment process. Whereas almost everyone in Trump’s ambit has proved to be almost fanatically transactional in their dealings with the president, credit Roberts with being principled. He has signaled, time and again, that he cares more about keeping the court above reproach, and above partisan politics, particularly in an election year.
To that end, the term-ending financial documents decisions are a masterwork. Both Mazars and Vance read as resounding victories for centuries-old principles about the limits of presidential immunity and Congress’ legitimate authority to conduct executive oversight. Both were interpreted as blistering losses for Donald Trump by Donald Trump. Yet they will compel the lower courts to dither and squabble in ways that will keep the financial documents away from the public eye for months if not years. You can’t help but admire the deftness of Roberts’ ability to simultaneously split the baby, persuade both sides that they won, and score indisputable points for judicial supremacy, all while also achieving nothing immediate.
As he did last year, Roberts played the term perfectly. He won the headlines and preserved the big lofty principle about big lofty courts, while still making it impossible for any of us to know exactly how corrupt the Trump family really is. But the stakes were even higher this year, as the election loomed over the term. And so he set out to ensure that the Supreme Court would not become a campaign issue. The chief justice knows that both parties treat the court like a piñata, trying to convince their respective bases that they know how to smack the most candy out of it. He knows Democrats remain traumatized over Merrick Garland’s stymied appointment and Justice Brett Kavanaugh’s toxic confirmation. During the Democratic primary, multiple top-tier candidates pronounced themselves open to adding seats to the Supreme Court to counter Republicans’ judicial chicanery. Roberts also knows that a term filled with one conservative triumph after another would only have given Democrats ammunition to run against the court, framing it as a partisan institution in need of reform. That didn’t happen.
By contrast, it’s difficult to imagine mainstream Democrats seriously endorsing court packing after the term that just wrapped. A majority of the justices pushed back against the Trump’s administration’s attempt to deport Dreamers, to write LGBTQ people out of civil rights laws, and to shield the president from all congressional scrutiny. They halted, at least for now, the effort to regulate abortion clinics out of existence. And they shoved off an attempt to expand the scope of the Second Amendment.
Some of these cases divided the justices along ideological lines, with Roberts joining the liberals. But others attracted the votes of Trump appointees Kavanaugh and Neil Gorsuch, who would’ve added fuel to the argument that the court is partisan had they consistently sided with the president. Yes, there were sweeping conservative decisions as well, including startling assaults on the separation of church and state. But these cases were wonky and complicated, not straightforward Citizens United–style routs that upended American democracy. The blockbusters that dominated the news were with compromises (as in the subpoena cases) or outright liberal wins (as in the LGBTQ discrimination case). And the average Democratic voter probably won’t know or care that, say, Roberts has laid the groundwork for more restrictions on abortion while striking down Louisiana’s TRAP law.
The irony of Roberts’ endless maneuvering is that preventing the court from appearing political requires him to act politically. Brokering compromises behind the scenes, manipulating the docket to keep hot-button cases far away from the court, forecasting the impact of each decision on the election—these are inherently political acts undertaken to convince public that the court is apolitical.
They are not the traditional duties of a jurist. But Roberts is the exceedingly rare judge who understands politics, not just party politics, but also how to behave politically. And he recognizes that, as Americans lose faith in the other two branches of government, he has the power, and perhaps the responsibility, to cultivate more trust in the court.
It is worth asking what Roberts will do when Trump eventually leaves office, when the chief justice no longer feels obligated to prove that his court is not beholden to a singularly toxic and corrupt president. To be sure, this chief justice is still not a centrist; he remains devoted to his pet projects, like blessing voter suppression laws or hobbling administrative agencies’ independence. It is simply too soon to tell whether Roberts has really had a change of heart on hot-button issues like reproductive rights and LGBTQ equality, or if he just wants to shield his court from political blowback in an election year. While he has succeeded in lowering the temperature of SCOTUS discourse, he has not clearly abandoned those conservative crusades that evoked so much Democratic outrage in the first place.
Citizens United is still on the books. The Voting Rights Act in still in grave peril.
But if he has distinguished himself this term, it’s for steadfastly refusing to join in the abdication of conservative principles to the cult of Trumpism. The number of conservatives in public life who have stood up to the worst aspects of Trumpism—the xenophobia, the small-mindedness, the abject cruelty—has been vanishingly small. You may not agree with the chief justice’s views on race, religious liberty, or voting rights. But Roberts deserves credit not just for protecting his court from Trump, but also for positioning it to fight another day.
Big Bill Barr and Roberts will inevitably clash over Trump's claim that he can do whatever he wants without consequences.
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