Trump judges

As Joan Biskupic’s account of the 21st century Dred Scott makes clear, the core problem with the silly “3-3-3 Court” rationalization is that it willfully ignores that Roberts has returned to being a reliable Alito ally, as both get more radical. And with a vote to spare he just doesn’t care about fig leaves or the appearance of consensus anymore:

The Supreme Court’s toughest cases during Chief Justice John Roberts’ tenure have often generated internal suspense, with shifting votes, last-minute switches and the chief’s own push toward compromises that would lessen the appearance of politics.

Not so this spring, when the six Republican-appointed conservatives established a far-reaching immunity from prosecution for former President Donald Trump.

Sources familiar with the negotiations told CNN there was an immediate and clear 6-3 split, as the justices met in private in the oak-paneled conference room that adjoins the chief justice’s chambers.

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.

First of all, it’s hilarious to think that Roberts could persuade anyone to “look beyond Trump” when the most ridiculous part of his opinion was a bespoke get-out-of-jail-free card for convictions on a state charge that was not before the Court. And second, only someone who has been brined in Newsmax for years could think that “but presidents of the Democrat Party can commit crimes with impunity too!” was an attractive principle to any non-MAGA crank even if anyone believed that the decision would actually apply to a Democratic president, which it obviously would not.

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.

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 is 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.

He upended constitutional norms, enlarged the institution of the presidency and gave Trump a victory that bolstered his litigating position even beyond the case at hand, for example, in his attempt to reverse the conviction in his Manhattan “hush money” trial. A jury in May found Trump guilty of falsifying business records.

Roberts may also have sensed that the liberals were simply not going to accept any version of his sweeping presidential immunity.  Roberts’ boldness was perhaps belied by some defensiveness, however, as he devoted five pages (of his 43) in rejoinder to the dissenting justices’ condemnation of his majority opinion. He deemed it “fear mongering” and derided “the tone of chilling doom.”

The best part of the outright whining part of Roberts’s opinion is that he doesn’t deny anything the dissenters say about the implications of his embrace of fascism in the US Reports, he just denies that presidents would take advantage of it, something he accomplishes by mostly ignoring what Trump did to need full Nixonian immunity in the first place.

Roberts has always been more partisan than institutionalist, but a 5-4 Court kept him somewhat honest, with the real possibility of Democratic control being there (and so, so tantalizingly close in 2016.) The series of bad decisions and election results that kicked off with RBG refusing to recognize when it was time to quit changed all that, and he’s back to being a young Reagan Administration DOJ hack, wanting it all and wanting it now.