Does John Roberts live in the same world as the rest of us? One has to wonder, given how frequently the Supreme Court’s chief justice seems removed from the social and political realities of the country.
As revealed by my Times colleagues Jodi Kantor and Adam Liptak in their remarkable, deeply reported article that was published on Sunday, Roberts orchestrated multiple high-profile rulings last term in ways that benefited Donald Trump, at least partly by acting as though the American people would not interpret them as political. In drafting the majority opinion for the Jan. 6 presidential immunity case, for example, Roberts “seemed confident that his arguments would soar above politics, persuade the public, and stand the test of time,” Kantor and Liptak wrote.
That attitude was dangerously naïve, as Justice Sonia Sotomayor tried to warn Roberts in the justices’ private conference following oral arguments in the case. The court was weighing whether to reverse a federal appeals court ruling that Trump was not immune from prosecution for his actions on and around Jan. 6. Sotomayor “did not see how the court could reverse the appellate decision. It would look like the Supreme Court was being used to delay the trial, she said,” according to the article.
She was right, of course: “Both conservatives and liberals saw it as an epic win for Mr. Trump.” Combined with the rulings in Trump’s favor in the other two Jan. 6 cases, it is no surprise that the Supreme Court’s public approval level is hovering around its all-time low. You don’t need a law degree to understand that in the post-Bush v. Gore era, the court treads on extremely thin ice when it inserts itself into presidential politics, all the more so if the justices in the majority share a political ideology with the winning side.
At the same time, Roberts gives indications of being aware of the fragility of the court’s legitimacy. In one of the article’s most telling details, the chief justice took charge of writing an opinion in a case involving Jan. 6 rioters — one that had initially been assigned to Justice Samuel Alito. Roberts did so just days after The Times reported that a pro-Trump flag had flown outside Alito’s home around the time of the Capitol attack. Given how unusual it is for a majority opinion to change hands, the timing suggests Roberts was trying to counteract a perceived bias of at least one of the justices.
Still, masking the radical partisanship of the court’s right-most flank doesn’t fool anyone. If Roberts wants to rebuild public confidence in the court he could start by acknowledging the real world outside One First Street. In a world as polarized as ours, you can’t issue a hugely consequential ruling that’s about Trump and pretend that it has nothing to do with Trump. The immunity ruling has already affected the operation of the presidency, and it’s natural for people to consider it in light of how Trump (or Kamala Harris, for that matter) would react to it starting in 2025.
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