SLATE legal experts Dahlia Lithwick and Joseph Stern picked up on a NYT article written about how Chief Justice John Roberts is not the court’s centrist. I am not sure exactly when Roberts came out of the centrist closet. In any case. Angry Bears Beverly Mann (2014) exposed Roberts as being the one waiting on more conservative justices to join the court. Of course, the majority court occurred during the Trump administration. I will not name names; you can figure that one out for yourself. Interesting piece on Slate. The link to Beverly post is above. A brief comment by her is here also.

We (Slate) Helped John Roberts Construct His Image as a Centrist. We Were So Wrong.

On Sunday, New York Times reporters Jodi Kantor and Adam Liptak published an article about conservative SCOTUS justices’ efforts to shield Donald Trump from any consequences for his attempts to overturn the results of the 2020 election. What Supreme Court reporting needs to become is less of the credulous academic translating of a handful of judicial opinions and more cultivation of inside sources, procuring of confidential memos, and production of massive scoops.

More to the point, their piece—about how the three Jan. 6 cases decided last year in favor of Donald J. Trump came together contains several remarkable news bombshells. One reveal includes Justice Samuel Alito having the Capitol assault case, Fischer v. United States, taken away from him by Chief Justice John Roberts; liberal justices were working to try to get the majorities to moderate maximalist positions in all three cases; and Justices Clarence Thomas and Neil Gorsuch were pushing the immunity case to be decided after the 2024 election. The biggest revelation here is the character John Roberts plays as an affable centrist steward of the court’s reputational interests. The centrist position created largely in the press and played to the hilt by him is a total fiction.

It was Roberts who decided that Trump and Trumpism would prevail in all three insurrection cases. He did not, in this instance, follow in the wake of the court’s aggressive conservative maximalists. He was the aggressive conservative maximalist. And he created majority opinions in his own image.

I am going to break here for a moment and pull up something which was said by an Angry Bear blogger by the name Beverly Mann:

I myself am pretty much McCutcheoned out by now, but before I take a break from it, I want to make two suggestions to progressives.  One is that they look ahead to when the current ideological majority no longer holds the majority–Ginsburg and Breyer are not the only justices who are aging, Ginsburg is not the only one who has health problems–and start selecting various statutes they dislike, and plan to challenge them as unconstitutional.

This was written April 2014 about John Roberts attempt to portray his decision in McCutcheon v. FEC as a minimalist actually shows just how far from minimalist it is. It is a good piece by Beverly and perhaps you might wish to read it here. Back to this article . . .

A singular revelation in the Times’ reporting is a memo Roberts produced in February of 2024. It came after a cross-ideological panel of the U.S. Court of Appeals for the D.C. Circuit handed down a decision rejecting Trump’s claims that he was almost wholly immune from criminal liability for actions taken during his time as president. In his confidential memo . . .

The chief justice “offered a scathing critique” of the opinion, complaining that the lower court judges “failed to grapple with the most difficult questions altogether.” He inveighed the Supreme Court should take the case, which would hold up Trump’s criminal trial slated for the summer, but also previewed how the justices would reverse the lower-level ruling. “I think it likely that we will view the separation of powers analysis differently” from the appeals court, he warned. From that point onward, it appears he was committed to a sweeping decision for the former president—and never seemed to wonder if a massive victory for Trump might imperil American democracy.

There are many more damning details about Roberts’ race to award Trump the biggest possible victory in the pair of cases with his name on them. In Trump v. Anderson, which challenged Colorado’s removal of the former president from the ballot, Roberts had an opportunity for a narrow decision. All four women justices were prepared to unequivocally join a modest opinion that kept Trump on the Colorado ballot without gutting the constitutional bar on insurrectionists returning to office. The chief justice spurned them, siding instead with the four other conservative men who wished to write this clause out of the Constitution. In the immunity case, Justice Sonia Sotomayor tried to work with Roberts to find areas of compromise. In response, he ghosted her.

The little scooplets are earthquakes, as is the fact of someone at the high court is not just talking to the press, but also leaking memos that reveal highly sensitive details of its decision-making process. But the real story that emerges between the lines is that anyone who believed that John Roberts was a principled movement conservative but also a Never Trumper was wrong.

Roberts moved mountains to allow Trump to evade accountability for attempting to unlawfully overturn the results of the 2020 election. And we should be very clear that everything he has done behind the scenes and in his opinions suggests he will be willing to do so again. The interference in the 2024 elections? It’s already happened.

The two of us bear some blame for the construction of the chief justice’s false image as a moderate. We have long said Roberts had a keen eye for the public mood, a sense of the fragility of the court’s legitimacy, and a profound belief that his obligation to history would be to steer a course away from everything Trumpism represents, including vigilante violence and contempt for the rule of law. We saw these traits in some of Roberts’ earlier compromise rulings, like his opinion to save Obamacare when it was at its greatest peril and his decision to bar the Trump administration from adding a citizenship question to the census that could have devastated blue-state representation.

Given this history, we thought he would guide the court to a place where the conservative legal movement prevailed, but its lunatic fringe was defeated. We were wrong. The Times piece doesn’t ask or answer the question of where John Roberts, the one who recently voted against the big swing in Dobbs,  upheld what remains of the Voting Rights Act, binned the very notion of the independent state legislature doctrine, and chastised his colleagues for political unseemliness, has disappeared to. Whether he was faking it then or is faking it now is almost irrelevant anyhow. The fact laid bare by the reporting is that John Roberts is on Trump’s side now, and willing to have the republic bear the consequences.

The other revelation, as Georgetown Law professor Steve Vladeck pointed out in Monday’s edition of his newsletter, is Roberts has evidently convinced himself that he can manufacture public consent by manipulating optics. The chief justice does not appear to worry about public faith in the court as a good in itself worth preserving, but as a precondition to achieving his agenda.

As Kantor and Liptak wrote, his language in the immunity decision “seemed intended to stay above the fray,” extending protections to “all occupants of the Oval Office, regardless of politics, policy or party.” This frothy both-sides language implies that Democrats and Republicans alike are just clamoring for a blank check to break the law from the Oval Office, and the survival of the republic depends on letting them do it. It seems Roberts has become so convinced that he is correct in his views about what the American public will and will not tolerate from the court.

He Roberts) genuinely believes that if he wrote in lofty institutional terms, the public would accept his opinion. The New York Times reports that Roberts’ colleagues Kavanaugh and Gorsuch piled on the flattery upon seeing his draft, lauding it as “exceptional” and “remarkable,” and it is plausible that all three men actually believed the nation would celebrate their decision rather than recoil with horror. The echo chambers in which these justices now reside leave no room for self-doubt.

Last term’s third Trump-connected case also saw Roberts powering past another perception problem at the expense of a colleague mired in scandal. According to Kantor and Liptak, the chief justice originally assigned the majority opinion in Fischer v. United States to Alito. The case tested the scope of an obstruction statute that prosecutors deployed to charge hundreds of Jan. 6 defendants, including Trump himself. After arguments, a majority of justices voted to narrow the statute, jeopardizing many prosecutions and convictions. Roberts assigned the majority opinion to Alito.

A month later, news broke that an upside-down flag hung over Alito’s household in early 2021, when it was closely associated with Trump’s “stop the steal” movement. Roberts’ response? Kantor and Liptak suggest that he seized the opinion from Alito, authoring it himself. (It may mark the first time in history that a justice has lost a majority opinion to a colleague who’s also in the majority for reasons that have nothing to do with the reasoned outcome.) They do not suggest that Roberts ever encouraged Alito to recuse from the case, or that his participation badly tainted the integrity of the outcome. Certainly Roberts did not evince any public discomfort with Alito’s ethical breach. To the chief, pushing Alito to the side would suffice to forestall public backlash. And his concern these days is not what the court should do, but what it can get away with.

In his reflection on the Times story, pollster Michael Podhorzer also notes that the Fischer opinion evidently wasn’t taken away from Alito when the chief justice learned about his flag-flying proclivities, but rather when he was caught out for it by the media. Is there any better illustration of how Roberts runs the railroad these days? For years, the chief justice encouraged the public to believe that he saw meaningful and independent value in keeping the court in its own lane, out of politics, in good-faith inclination toward compromise. Those days are gone. It turns out it only matters, if at all, when you’re caught.

Two years ago, in his solo Dobbs concurrence, Roberts faulted both the majority and the dissent for their “relentless freedom from doubt.” We can only guess that some time thereafter, he decided doubt was, in fact, for suckers, and embraced the aggressive activism of his colleagues to the right. We get it: Losing is no fun, and in the early days of the 6–3 court, when Roberts tried to find a middle ground, he sometimes faced the sting of defeat, and rebukes from his own party.

His solution, we surmise, was not to take a principled stand of dissent when the far-right bloc went too far, too fast, but to join them and lead them to new heights of extremism. If you can’t beat them, it surely can be more enjoyable to join them, especially when any fears of breaking the republic can be washed away with your colleagues’ sweet, soothing sycophancy.

SCOTUS: We helped John Roberts build a centrist image. We were wrong, SLATE, Dahlia Lithwick and Joseph Stern

John Roberts Unwittingly Paves the Way for Eventual Wholesale Liberal Judicial Repeal of Statutes, Too, Angry Bear