In blockbuster reporting last week, the New York Times revealed behind-the-scenes conference details about how the Supreme Court’s conservative majority constructed the three major decisions last term that, taken together, ensured former President Donald J. Trump would face no criminal accountability for the Jan. 6 insurrection before this November’s election. How did Chief Justice John Roberts—who authored all three decisions—justify the sweeping immunity his opinion awarded to Trump and all future presidents? In part, by woefully misreading the public mood on the matter. On this week’s Amicus podcast, Dahlia Lithwick was joined by Linda Greenhouse, the veteran New York Times Supreme Court reporter, opinion columnist, and author of Justice on the Brink: A Requiem for the Supreme Court, to unpack what this new reporting tells us about the chief justice of the United States, his agenda, and what it means for the flotilla of election cases inevitably headed the high court’s way in the coming weeks. This transcript has been edited and condensed for clarity.
Dahlia Lithwick: I think one of the most fascinating pieces of reporting from the New York Times was the chief justice’s own conviction that if he could write the immunity opinion in some kind of lofty magisterial way, the public would say, “Oh yeah, this is obviously correct.”
And I think it probably says a lot about the rooms he’s in and the feedback he receives, for him to think that this decision could possibly be received as nonpartisan or neutral, simply because in his mind it was nonpartisan and neutral.
Linda Greenhouse: He’s very smart. How could he have been so clueless about where this opinion was going to leave a court that has already been really battered in public opinion ever since the run-up to Dobbs? Public esteem for the court has plummeted in the last couple of years. Although, Roberts would probably say, as of course Alito said in his Dobbs opinion, Even if we know what public opinion is, we have no authority to cabin our views and our actions accordingly.
What this says to me is that he and other members of his majority live in a kind of bubble. Not everybody was critical of the majority’s opinion in Trump v. U.S. I believe the Wall Street Journal opinion page was not critical of it, and I’m willing to bet that that’s an opinion page that is carefully read in certain chambers at the Supreme Court. I think the chief justice’s willingness to tune in to various voices that are speaking about and speaking to the court may be rather more limited than it should be.
I’m looking at a guest essay you wrote last June, “How John Roberts Lost His Court.” I think you were trying to separate Roberts’ influence on the cases themselves and how those got decided from what you said was his apparent inability to control or even attempt to control some of his colleagues.
There is one theory that says the reason we are seeing a pattern of John Roberts migrating from either dissenting with the liberals or trying to find some middle position with Brett Kavanaugh and the liberals to what happened this year in Loper Bright and in the immunity case has to do with him being tired of being on the losing side and deciding to throw his lot in with the “do it now, do it fast” ethos of Justices Alito and Thomas.
My view has always been: What does he care about? What’s his agenda?
On race, look back to Parents Involved, from the very beginning of his tenure—his agenda there was to get the government out of the business of counting by race. On voting rights, look at Shelby County. Now in Milligan and the Arizona case from two terms ago, Section 2 of the Voting Rights Act may have had a reprieve but it remains an accident waiting to happen, maybe even at his hands. Look at his agenda for carving out a preferred place in the public square for religion. Then there’s his agenda on the administrative state and executive power. When it serves the agenda for him to go with those on his right, he does it out of conviction.
I didn’t mention abortion on that list. I have never thought that abortion was one of his agenda items. Not that he was any fan of Roe and not that if Roe had been overturned at some other time, he would [not have] been perfectly happy. He would have been happy, if he was not chief justice at the time of Dobbs.
That’s a long way of saying that I don’t think he just decided: I want to be on the winning side, I’ve got five people who, on many cases, are to my right. It just serves me to be one of six rather than in the minority. I don’t think that was what was going on.
So in your view it’s not so much that John Roberts has taken a turn, it’s that in this subset of cases—including finally getting rid of Chevron, including the immunity case—these ideas fit with an agenda he’s had for a long time. He had a view of executive power, he had a view of the administrative state. It’s not that he took a turn, it’s just that the way the deck was shuffled last term gave him an opportunity for maximalist opinions in these key areas. It’s not really that Roberts has changed, it’s that he’s always been this person, and the notion that he has drifted from incrementalist centrist consensus-builder to something else—that’s just overblown in the press?
Yes. I would be interested in five or 10 cases in which his centrality was very manifest. I don’t think there are very many. He just seems like a smoother character than, say, Sam Alito, and he certainly manifests more institutional interest in the welfare of the court.
But when push comes to shove, look at his victories in the religion cases, which have completely upended the mid-20th-century settlement on the relationship between religion and government. That’s all shot to smithereens. We’re very close to saying the public fisc must be open to fund religious education, whether it’s charter schools or whatever, on the same basis as public schools. He did it in increments, and he did it while luring Justice Kagan along in those early cases, like Trinity Lutheran, the playground case. He did it very cleverly. Step by step, he’s brought us to a very consequential and, speaking as a secularist, a very troubling point. That’s the Roberts that I’ve tried to watch over the years.
We had a docket in the last term that fit in his wheelhouse of what he really cares to exert himself on. Of course, the court chooses its docket. Nobody makes them take these various cases. They had to get involved in the immunity case, but by and large, the court designs its workload in exactly the way it cares to.
They’ve taken very few cases for the coming term, so it will be very interesting to see how the coming term gets built out in terms of reaching out for culture war issues.
I want you to join me in the land of terrified speculation for one brief moment. What do you think are the odds that an election case, another Bush v. Gore, or one of the cases that the court batted away in 2020, some kind of challenge comes up to the court this term? And how susceptible the Justice Roberts we’ve been discussing and this court will be to challenges that come up from the states in the coming weeks and months?
I’m not really confident. Some people say, Well, they didn’t take any of those cases four years ago. But the cases were very poorly presented four years ago. They came late; some of them were so wacky, they couldn’t even get Trump-appointed judges in the lower courts to go along. So I take very little comfort in what happened four years ago. I can see real problems ahead. The Republicans are not giving up easily, and they have very good lawyers—unlike the last time. It’s something to hold our collective breath over. That is for sure.
You’re saying something more subtle than I think a lot of commentators are saying, which is: Yes, there’s a lot to be afraid of, and yes, John Roberts has not been necessarily a great friend to voting rights generally over his career.
But you are not saying that the immunity decision is evidence that the majority of the court wants to throw the election to Trump, you’re saying we have a lot to worry about from this court generally on this election and that has nothing to do with what happened in the three insurrection cases that the court decided in Trump’s favor last year?
That’s my view.
Now there may be a couple of justices who would very much like to throw the election to Trump, but Chief Justice Roberts is certainly not one of them. But it would be easy for the court to be a stickler for detail about late-arriving ballots or, you know, some of the out-and-out voter suppression that we see going on.
The Arizona emergency order that came down a couple of weeks ago was not a good sign. So there’s a lot of turmoil in the election world, and the Republicans are spending 25 hours a day, eight days a week, trying to figure out ways to keep people from voting if the Republicans think they’re going to vote the wrong way.
There’s going to be lots of turmoil and maybe some unprecedented questions coming up. And then we have this Purcell principle. Purcell says that if a case comes up shortly before an election, the court should not intervene. It’s invoked when the court chooses to invoke it, and is not invoked so much when the court doesn’t. That’s all in the eye of the beholder. They invoke it when they have the votes, and when it serves their purposes. It’s very concerning, and we need to really watch it like hawks and call out what’s happening in real time, as it happens.
