The front page of today’s New York Times features the headline “How Roberts Shaped Trump’s Supreme Court Winning Streak.” The piece by Jodi Kantor and Adam Liptak provides an inside look at the three Trump cases: Trump v. Anderson, Fischer v. United States, and Trump v. United States. Similar to Joan Biskupic’s reporting (1, 2, 3, 4), much of the information reported by Kantor and Liptak can be inferred from opinion assignments and final work products. However, the New York Times offers new insights that were not previously known. It is evident that they have sources in high places, although they do not provide any information regarding Justice Kagan’s thoughts. Her involvement seems to have been deliberately concealed—almost as if with a cloth.
Trump v. Anderson
Kantor and Liptak delve into the deliberations of Trump v. Anderson.
Could Colorado remove Mr. Trump from the ballot in its Republican primary, posing a challenge to his presidential campaign?
From the onset of the justices’ private discussions on the case, Trump v. Anderson, it was evident that the court would rule against it, according to several insiders familiar with the conversations.
The outcome was not surprising given the tone of the oral argument. It appears that Roberts made extensive efforts to craft a unanimous and unsigned decision, reminiscent of Chief Justice Warren in Brown v. Board of Education:
This time, Chief Justice Roberts aimed for a unanimous decision that was unsigned. In politically charged cases, consensus among the justices lends more authority to the decision. He even went as far as individually consulting with each justice to gauge their acceptance—a rare step.
The consultation with each justice led to a narrowly tailored opinion that failed to address much beyond the core issue. There are parallels between Trump v. Anderson and Brown v. Board of Education in this regard. However, Roberts’ efforts to achieve unanimity on all aspects fell short. The report indicates that four conservatives urged Roberts to go further:
All nine justices agreed that Mr. Trump should remain on state ballots, but four conservatives pressed for a ruling that would necessitate congressional action to enforce the Constitution’s prohibition. Such a decision would offer greater protection to Mr. Trump, requiring Congress to vote to enforce the insurrectionist ban if he were to win re-election.
It is speculated that the four conservatives were Justices Thomas, Alito, Gorsuch, and Kavanaugh. Barrett was not among them, as indicated in her concurrence. The decision left Roberts with a dilemma. If he did not address Congress’s role, the conservative quartet might have issued separate opinions, lacking a unified decision. However, addressing these issues would have led to fractures among Sotomayor, Kagan, Jackson, and Barrett. Roberts sided with the conservatives:
Chief Justice Roberts ultimately sided with the four conservatives in an opinion he wrote but was issued as unsigned. Justice Amy Coney Barrett and the three liberals penned concurrences, criticizing the majority’s position. Although the judgment was 9-0, true agreement among the justices was lacking.
Contrary to Will Baude and Michael Stokes Paulsen in the Harvard Law Review, the per curiam decision in this case deserves commendation. Roberts faced a challenging task and had to navigate a compressed timeline before the Colorado primary. Considering the circumstances, Chief Justice Roberts handled the case as well as possible.
It is regrettable that Kantor did not uncover insights into whether Justice Sotomayor’s opinion was initially framed as a dissent and why it seems to address parts of the majority opinion that were absent. Additionally, the significance of Justice Barrett’s concurrence, critiquing the majority’s language while chastising the dissent, remains unclear.
Alito Lost the Majority in Fischer
At the conclusion of each term, predictions are made about which Justice will pen majority opinions in each case. Based on counts alone, it was inferred that Alito lost majority opinions in the NetChoice cases and Gonzales v. Trevino. Joan Biskupic’s reporting confirmed this speculation.
There was another prediction that remained unresolved. During the last week of the term, it was predicted that Justice Gorsuch would have the majority opinion in Fischer. However, it turned out that Roberts authored the Fischer majority, while Gorsuch had Grant’s Pass. According to Kantor and Liptak, Alito did indeed lose the majority in Fischer, marking another majority opinion loss for him. The authors link this change to the flag incident:
Following oral arguments in April, a majority of the court, including the chief justice, privately agreed that prosecutors had erred. It seemed likely that the outcome would narrow, reverse, or prevent convictions of some Capitol rioters. It also appeared to jeopardize some charges against Mr. Trump, including obstructing Congress’s certification of the 2020 election.
The chief justice initially assigned the opinion to Justice Alito, according to several court insiders. However, a month later, Chief Justice Roberts informed the court that Justice Alito was no longer the author. The chief justice took over the opinion.
Externally, the change went unnoticed. Internally, it came as a surprise. Changing authors without altering the judgment itself was a departure from court protocol, as per several court insiders.
If the reporting is accurate, Alito lost majority opinions in NetChoice, Trevino, and Fischer. Has any Justice ever experienced such a term with multiple majority opinion losses? It’s hard to recall any such instance.
Kantor and Liptak hint that the change may be linked to the flag incident, although they lack definitive confirmation:
Both the chief justice and Justice Alito declined to respond to inquiries from The Times regarding the reason for the alteration. However, the timing of the new assignment on May 20 provides a potential clue. Four days earlier, The Times had reported on the upside-down flag displayed at the Alitos’ Virginia residence shortly after the Jan. 6 insurrection at the Capitol.
Could it be that Roberts wanted to avoid the optics of an Alito-authored majority opinion favoring Trump in a January 6-related case? Did Roberts aim to give Alito the opportunity to recuse without affecting the majority if further allegations surfaced? Was Alito complicit in the change, or was he compelled to relinquish the opinion? It was truly a remarkable turn of events.
KBJ Reversed Her Vote in Fischer
The final vote in Fischer stood at 6-3. Justice Jackson aligned with the four conservatives, while Justice Barrett authored a dissent supported by Justices Sotomayor and Kagan. Jackson’s vote raised eyebrows, particularly as it could benefit Trump. Additionally, Jackson asserted her independence through rigorous questioning during oral arguments in the insurrection case.
Kantor and Liptak revealed that KBJ altered her vote following Chief Justice Roberts assuming authorship of the majority opinion:
The change in authorship was not the only shift in the case. Shortly after, Justice Ketanji Brown Jackson used her vote to alter the outcome.
Similar to the Colorado case, the vote did not strictly follow party lines. While Justice Barrett, along with Justices Sotomayor and Elena Kagan, believed that prosecutors had the right to charge rioters under the obstruction law, Justice Jackson took a different stance. Several court insiders indicated that she concurred with the majority that the law was applied too broadly. However, she felt that the others were overreaching by overturning the lower court’s ruling, dismissing the charge in the present case, and undermining numerous others.
Her intermediary position provided leverage. She agreed to side with the majority if they remanded the cases to lower courts for reassessment. The conservatives accepted her terms. The final tally was 6-3, with Justice Barrett aligning with the liberals and Justice Jackson with the conservatives.
Jackson’s maneuver was strategic. Without her concession, the majority would have solely determined which issues warranted immunity. However, in exchange for her vote, the majority agreed to let Judge Chutkun decide initially how to address these matters. During her highly-publicized appearance on The View, Justice Jackson alluded to the “power” of her position. Indeed, her vote held significant influence, and she was prepared to wield that power.
The Trump v. United States Memorandum
The most significant revelation is Chief Justice Roberts sending a confidential memo on February 22 regarding the immunity case to his colleagues, urging the Court to review the case. Justices typically refrain from discussing a case before the conference, but Roberts seemed to be proactive in this instance.
While it is unclear whether Kantor and Liptak obtained a copy of the memo, they reference “several people from the court who saw the document.” This likely indicates a Justice or clerk. It is puzzling who else within the building would have access to the document, especially given the heightened security protocols post-Dobbs. The memo purportedly “exuded frustration and certainty.” Roberts vehemently criticized the D.C. Circuit’s decision, deeming it inadequate and poorly reasoned. He accused the panel of evading the most challenging questions and predicted a differing analysis of the separation of powers.
Shortly after the memo, Justice Kavanaugh endorsed Roberts’ position:
Following the chief justice’s February 22 memo, which revealed his alignment with Mr. Trump’s arguments, his stance gained momentum. Justice Kavanaugh concurred the next morning, aligning with the chief’s rationale, as per insiders familiar with the exchange. With the three most conservative justices presumably on board, and two justices at the Court’s ideological center in agreement, the course became evident.
When Would Trump v. United States be Argued?
The timing of when the case should be heard emerged as another crucial question. Ordinarily, a petition granted in March 2024 would likely be heard in October or November 2024, with a decision expected by June 2025. This timeline would have made it impossible to resolve the immunity issues before the election. If Trump emerged victorious, the Court might never have to rule on the case. In February, it was speculated that the Court might adopt a deliberate approach to avoid drafting a landmark opinion.
The liberal justices advocated for expediting the process:
During the justices’ private conference, Justice Sotomayor voiced concerns about the Court potentially reversing the appellate decision. She argued that it would appear as if the Supreme Court was being exploited to delay the trial, according to a source familiar with the proceedings.
Hence, she and the other liberal justices emphasized the critical issue of timing. Each day the Court delayed hearing the case benefited Mr. Trump, reducing the likelihood of a trial before the November 5 election. Some of the Court’s more conservative members preferred deferring the case until the commencement of the next term in October, as per several insiders.
However, the conservatives opposed hearing the case in April:
Justice Thomas, advocating for scheduling arguments in October, expressed reservations about entangling the Court in political disputes.
Justice Gorsuch concurred, asserting that rushing the matter was inappropriate, and counsel involved would require time to craft their most compelling arguments.
Under this schedule, the Supreme Court would delay a decision on the immunity question until after the presidential election. If Mr. Trump emerged victorious, the criminal case could be dismissed.
It is likely that Thomas sought to avoid being drawn into political battles by emphasizing that the argument for expediting the case was, in fact, political. In essence, the only motive for conducting oral arguments in April was to have a verdict before voters cast their ballots. Seth Barrett Tillman and I made a similar argument regarding attempts to hasten the special counsel case.
In this instance, Roberts sided with the liberal justices to hear the case in April:
During the February discussions on the immunity case, the most pivotal of the three, several conservative justices proposed scheduling it for
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