John Roberts Rebuked Trump This Supreme Court Term. Why? John Roberts has shaped rulings that upset conservatives but left room for those on the right to prevail in later cases.


Chief Justice John Roberts Rebuked Trump This Term. What's He Up To?

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What a term for the U.S. Supreme Court. The term ended yesterday. There was a double-barreled rejection of President Trump's claims that he's immune from state grand jury and congressional subpoenas. For Chief Justice John Roberts, who wrote the court's two decisions, it was a stunning end to a momentous term. NPR legal affairs correspondent Nina Totenberg reports that Roberts played perhaps the most influential role of any chief justice in close to a century.

NINA TOTENBERG, BYLINE: In a remarkable series of decisions over the last month, Roberts rebuked President Trump on matters from policy to personal. Yesterday's decision for a seven-justice majority once again pushed back on Trump's assertion of almost unlimited presidential power. In other cases, Roberts cast the deciding fifth vote, as he did when preventing Trump from ending the program that currently predicts the so-called DREAMers from deportation. The list goes on. He cast the deciding vote against reversing a major abortion precedent and even sided with Trump appointee Neil Gorsuch in ruling that the federal ban on discrimination based on sex applies to gay and transgender employees. At the same time, though, Roberts has whittled away at federal agency independence and moved the court decidedly to the right on matters of church and state.

If the decisions from a conservative chief justice seem dizzying to some, they are infuriating to hard-line conservative Trump supporters. Missouri Senator Josh Hawley has, for all practical purposes, disowned the chief justice he once clerked for.


JOSH HAWLEY: It represents the end of the conservative legal movement or the conservative legal project as we know it.

TOTENBERG: And Arkansas Senator Tom Cotton has called on Roberts to resign.


TOM COTTON: And if the chief justice thinks he has such excellent political judgment, I would recommend that he resign and travel to Iowa for the caucuses and see if he can earn the votes of his fellow Americans.

TOTENBERG: Progressives aren't thrilled with Roberts, either, noting that when Roberts has sided with the court's liberals, his decisions are often hair-splitters that leave plenty of room for further challenges from the right. When he cast the fifth and deciding vote in this year's abortion case, for instance, he did not join the opinion of the court's four liberals. Rather, he wrote separately, leaving plenty of room for anti-abortion forces to chip away at Roe vs. Wade in the future.

Roberts' solo opinion objected to one thing - the fact that the Louisiana law at issue in the case was identical to a Texas law struck down by the court four years earlier. What appeared to stick in his craw was that anti-abortion forces and the 5th Circuit Court of Appeals thought they could just flip the outcome because one justice had retired and been replaced by a Trump appointee.

RICHARD LAZARUS: The maneuver was just a - was a crass political maneuver.

TOTENBERG: Harvard law professor Richard Lazarus has known Roberts since the two of them were roommates in law school.

LAZARUS: He chose a different path. He chose to use that case to make a point. And that is, there is such a thing as a court, and you can't expect us to behave like partisan legislators. But I'm not going to.

TOTENBERG: Lazarus also thinks that Roberts' vote in the abortion case was a shot across the bow aimed at presidential candidates who campaign with a list of potential nominees to the court.

LAZARUS: I think he hates that, and I think he's trying to send a very strong message as much as he can. And I think he hopes to get the other justices to do some of the same.

TOTENBERG: Indeed, Roberts may just be setting the example in other ways, for instance when he joined Trump appointee Neil Gorsuch's opinion in the LGBTQ case. Was he giving Gorsuch additional cover, or did he really agree with Gorsuch's opinion - also joined by the court's four liberals? We may never know. Roberts has voted in the majority this term an astounding 97% of the time. That means that in 51 out of 53 signed opinions this term, he picked who will write that opinion for the court. Duke Law professor Guy-Uriel Charles.

GUY-URIEL CHARLES: So he's taking control of the narrative of the court in imposing his own set of frameworks, imposing his own stamp on this court.

NOAH FELDMAN: The chief's basic worldview hasn't changed.

TOTENBERG: Harvard law professor Noah Feldman says the chief justice is OK with the court being ideological but not with it acting in a partisan way. And that means adhering to precedent.

FELDMAN: Now to be clear, he wields a very deft doctrinal scalpel. And that means he can slice and dice a precedent till there's almost nothing left of it.

TOTENBERG: As Roberts' longtime friend Lazarus observes, the chief justice is uniquely positioned right now. He's both the chief justice and the controlling vote on a court split between hard-line conservatives and traditional liberals. That hasn't happened since Charles Evans Hughes was chief justice in the 1930s. Historian James Simon, author of a book about Hughes, points to a speech that Hughes gave in 1927.

JAMES SIMON: He said, you know, if the public perceives the court as politically partisan, it loses its authority. And essentially, Roberts is saying the same thing in 2018.

TOTENBERG: As Simon points out, the difference is that Hughes was a progressive Republican and Roberts is a conservative Republican. Hughes bided his time until he had more votes and could write broader opinions to the center left, while Roberts may be biding his time to reach far more conservative outcomes.

There is, however, one area of the law where even this term Roberts seemed on occasion not to have lived up to his own nonpartisan billing. And that area is voting rights. Duke's professor Charles notes that in modern times, law students were taught that one of the major roles of the Supreme Court was to patrol the enforcement of democratic processes.

CHARLES: And this is consistent with what Roberts told us during his confirmation hearings about how he viewed himself. His role was to assure that the process was fair and that he was calling balls and strikes. He wasn't going to determine the outcome of the game.

TOTENBERG: But, says Charles, when it comes to policing the political process of voting, Roberts has, even this term, amid a pandemic, taken a pass. In three cases during the primaries this year - in Wisconsin, Texas and Alabama - the court's conservatives have blocked orders from lower-court judges who were trying to assure voters the ability to vote by mail in order to protect them from exposure to COVID-19.

CHARLES: We're likely to see more litigation as we come toward November. And we have a court that says we're not going to get involved.

TOTENBERG: Nina Totenberg, NPR News, Washington.


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