John Roberts still high on his own supply
By 
Appellate judging in countries with strong-form judicial review entails some measure of bad faith as part of the job description, but ol’ Balls N’ Strikes remains off the charts:
From the moment he was confirmed in 2005, Chief Justice John Roberts made it his mission to differentiate the Supreme Court from the political branches. Yet, the court is ensnared in politics perhaps more than ever – and by the chief’s own hand.
The former star appellate lawyer who allies once cast as the smartest person in the room remains confounded by the realities of Donald Trump.
Roberts was shaken by the adverse public reaction to his decision affording Trump substantial immunity from criminal prosecution. His protestations that the case concerned the presidency, not Trump, held little currency.
It’s amazing first of all to craft what was obviously a bespoke immunity suit for Trump — including the holding that “official acts” could not even be used as evidence in a trial based on private actions, which was so absurd that Amy Coney Barrett defected despite what was surely intense pressure not to rat on your friends — and expect to be hailed as the nation’s nonpartisan savior. But it’s also revealing of the authoritarian mindset that he thought that, even taken at face value, “[t]hat immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party” would appeal to non-MAGA people. I, personally, don’t want Democratic presidents to be kings either! Presidents who commit crimes should be prosecuted!
The Supreme Court’s stature has shrunk, according to multiple polls. In July, for example, after the Trump immunity decision was released and the annual session ended, fewer than half of Americans (47%) expressed a favorable opinion of the court, according to a Pew Research Center survey.]
That favorable rating was 23 percentage points lower than in August 2020, when the conservative supermajority on the nine-member bench took hold. Part of the drop no doubt tracks the court’s 2022 decision overturning abortion rights, a decision to which Roberts partially dissented.
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He is plainly mindful of his legacy.
“You wonder if you’re going to be John Marshall or you’re going to be Roger Taney,” Roberts told a law school audience in 2010, referring to the great 19th century chief justice and the latter chief who wrote the 1857 Dred Scott decision declaring that slaves were not citizens. “The answer is, of course, you are certainly not going to be John Marshall. But you want to avoid the danger of being Roger Taney.”
Well, give him this, he was right to identify which one of these historical comparisons would be viable.
The scary thing is that there’s a real possibility that Trump v. US might not end up being the worst Supreme Court opinion released in 2024:
Trump, whose pending criminal prosecution arises from his 2020 effort to overturn the valid results giving Joe Biden the White House, has already engaged in a series of lies about state ballot rules and other election procedures this cycle. In one of his especially audacious falsehoods, he has proclaimed that Harris will beat him only if she cheats.
Dozens of Republican-generated lawsuits against state election practices are making their way through lower courts. Any litigation that is truly consequential in the Trump-Harris battle is likely to force the justices into rapid decision-making against tight deadlines.
The possibility of another Bush v. Gore hangs over the court. In that 2000 case testing which candidate could claim Florida’s crucial electoral votes, the court ruled for then-Texas Gov. George W. Bush over then-Vice President Al Gore. The 5-4 decision fell along the justices’ ideological, if not political, lines.
Roberts, who had served in the Reagan and George H.W. Bush administrations and was in private practice at the time, assisted George W. Bush’s legal team. After Bush took the White House, he appointed Roberts to a US appellate court. In 2005, he elevated Roberts to the Supreme Court to succeed William Rehnquist, for whom Roberts had once worked.
In one early interview, Roberts told C-SPAN: “The most important thing for the public to understand is that we are not a political branch of government. They don’t elect us. If they don’t like what we’re doing, it’s more or less just too bad.”
If this election produces a Trump v. Harris, “it’s more or less just too bad” might be the last line of Roberts’s opinion finding the necessary ballots for Trump that Georgia Republicans refused to find in 2020.