The supremely partisan court of Chief Justice Roberts

The Supreme Court has become a political clubhouse, consumed with optics, log-rolling and media leaks. Its decisions in certain matters are sourced not in the text, structure or history of the Constitution, but in the partisan policy choices of the justices.

Rudimentary principles of judicial ethics are swept under the rug. Requirements of impartiality are ignored. The court officially denies this criticism, but there is no refuting it.

The court was partisan when it decided Bush v. Gore, Shelby County v. Holder, Citizens United and Dobbs v. Women’s Health. But it has never been more partisan than its decisions in the trio of cases involving the Jan. 6 Capitol riot and former President Donald Trump. This proposition was elaborated in a New York Times article by Jodi Kantor and Adam Liptak on Sunday.

The Times gives us a few bits of news that were not out there and a lot of backstory that we only suspected. The article’s spotlight of attention falls on Chief Justice John Roberts.

Many had seen Roberts as an institutionalist who cared about the public’s perception of the court. He said he feared that if the court is perceived as too partisan, it becomes a legislature, and the public will not respect its decisions.

In his 2005 confirmation hearings, Roberts famously told the Senate that he would judge like an umpire calling balls and strikes. He said: “Umpires don’t make the rules; they apply them….It is a limited role. Nobody ever went to a ballgame to see the umpire.”

What he said is nonsense.

After the court took its summer recess, constitutional law expert Stephen Vladeck wrote that the defining theme of the term had been Roberts turning “sharply to the right.” This week, Vladeck wrote, “What Sunday’s Kantor/Liptak piece drives home is that Roberts wasn’t pushed to go that way; he pushed the Court.”

The Times article features leaked internal documents and summaries of internal conversations, providing tremendous insights into the high court’s process.

In the Colorado ballot disqualification case, Kantor and Liptak report that there had been broad consensus on the court that the justices were going to reverse. This is hardly startling. But what we didn’t know is that the justices rushed to judgment to keep Trump on the ballot.

Roberts reportedly lobbied for a unanimous ruling, which is no surprise. But only five justices thought that Congress could only enforce Section 3 of the 14th Amendment through a statute, a position that fights the text and structure of the Constitution. Four justices were not so sure. The reporting indicates that Roberts was at the crossroads, and he went over the waterfall on the right.

As for the Trump immunity case, we learn from a leaked confidential memo that Roberts offered a “scathing critique” of the D.C. Circuit’s ruling. Most surprising — aside from the fact that the Times obtained the memo in the first place — is that Justices Clarence Thomas and Neil Gorsuch feared the timing of the case would “drag the court into political battles.”

When a judge decides a case involving political facts, he is inevitably dragged into “political battles.” There is nothing wrong with that. But why avoid “political battles” by coming down so hard on the side of a rogue former president and against accountability under law?

Although the April 25 oral argument foretold the ultimate outcome of the July 1 decision, Roberts gave no quarter to the liberals once the drafting of his opinion began. The chief justice ignored the text and original understanding of the Constitution to give Trump the healing benediction of immunity.

In Fischer, the Jan. 6 case involving the obstruction of congressional proceedings, the Times reported that Justice Ketanji Brown Jackson strangely changed her vote well after the conference, suggesting that the initial vote was 5-4 to reverse. According to the article, in exchange for joining the majority, Jackson was able to push the other five justices toward a narrower opinion — one that limited the scope of the criminal obstruction statute, but that left open the possibility that the charges could be upheld by the lower courts on a more complete record.

You might wonder what leverage Jackson had, since her vote was not necessary for reversal. Perhaps Roberts, who has said that 5-4 decisions erode public confidence, obtained Jackson’s vote at the price of leaving a sliver of hope that the charges against Trump might ultimately be sustained.

The real gem is the reporting that the majority opinion in Fischer had originally been assigned to Justice Samuel Alito, only for Roberts to pull it on May 20 — assigning the opinion to himself more than a month after the justices voted on the outcome and the initial assignments made. The timing coincided with the Alito flag scandal — a story Kantor had broken on May 16, a Thursday, with the case reassigned the following Monday. Instead of demanding that Alito recuse, Roberts simply wrested the opinion away from him.

Roberts has more than earned his reactionary stripes. He wrote the opinion gutting the Voting Rights Act, dissented in the gay marriage case and voted to nullify Roe v. Wade. He ruled for Donald Trump in the trilogy of cases decided last term. He has refused to make Thomas and Alito recuse themselves in Trump cases where their bias spills out on the public record.

Roberts says he worries about the perception of the Supreme Court as partisan, but he has done nothing more than pay lip service to this principle. Thus, it was important to him for the immunity case to be heard and decided this term, so that Trump would be off the hook before the election. It was important to Roberts to take Alito’s name off the opinion in Fischer — even though it wasn’t important enough to make him recuse.

The Roberts court has become so political that it is driving itself to term limits. As FDR put it in a Fireside Chat to the nation on March 9, 1937: “We have, therefore, reached the point as a nation where we must take action to save the Constitution from the court and the court from itself.” 

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.