(Photo by Jabin Botsford – Pool/Getty Images)
John Roberts has a reputation as the center of the Supreme Court. Not just because, as Chief, he literally sits in the middle during arguments. It’s because he found a way to save the Affordable Care Act (on his terms) in 2012 and he famously backed away from the extremist majority opinion in Dobbs. So many liberals extend him a lifetime “reasonableness card” on a Court that has drifted well right of center.
That is a huge mistake.
CNN’s Joan Biskupic is back with more insight into what went on behind the closed door during this Supreme Court Term. Yesterday, she provided the low down on the Idaho abortion case. Today, she reveals what happened with the nadir of the Term, the presidential immunity case, the case that embraced the Richard Nixon quip, “when the president does it, that means it is not illegal.” Remember when we as a nation were horrified by that sentiment? LOL, how innocent the country was in 1977.
According to Biskupic, the immunity vote was an immediate 6-3 divide along ideological lines, and Roberts was totally chill with that.
Roberts made no serious effort to entice the three liberal justices for even a modicum of the cross-ideological agreement that distinguished such presidential-powers cases in the past. He believed he could persuade people to look beyond Trump.
In past decades, when the justices took up major tests of presidential power, they achieved unanimity. Certainly, today’s bench and all of Washington is far more polarized, but as recently as 2020, Roberts was able to broker compromises in two Trump document cases.
This hard right turn on such a controversial case apparently caught some on the inside by surprise.
It was understandable for outsiders, and even some justices inside, to believe that middle ground might be found on some issues in the immunity dispute and that Roberts would work against any resounding victory for Trump.
The chief justice’s institutionalist tendency had been cemented over the past two decades. He often talked it up, famously admonishing Trump in 2018 that jurists shed their political affiliation once they take the robe, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have it an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
The chief justice, now 69 and about to begin his 20th term, appears to have abandoned his usual institutional concerns.
Nothing like a patently political decision that greatly expands the power of the president beyond what the majority of Americans approve of to cement the Court’s legitimacy!
And the reaction to this behind-the-scenes revelation has been swift.
The presidential powers mess Roberts made will take a constitutional amendment to clean up. That’s certainly *a* kind of a legacy, just not a good one.
