Roberts renews grip on high court, for better or worse

WASHINGTON (CN) — As the Supreme Court faced scorn and scandal in its sharp turn to the right, Chief Justice John Roberts’ reputation as a stanch institutionalist allowed the public to paint him in a more moderate light. But for court watchers, the George W. Bush appointee’s opinion on presidential immunity may have finally burst the illusion. 

“How this decision will go down in Roberts' court infamy or history, depends on what happens in the future,” Eric Segall, a law professor at Georgia State University, said. “But I think this has a good chance of ruining his legacy. I mean, it's already ruined in my mind.” 

The public has consistently viewed Roberts in a favorable light, giving him high approval ratings even as public opinion of the Supreme Court plummeted. His starring role in teeing up broad immunity for the only former president to also carry the title of convicted felon, however, has put him at the center of public scrutiny. 

“Chief Justice Roberts has invented something very dangerous to our republic without the support of text or history,” Richard Bernstein, an appellate lawyer, said. 

Roberts’ own liberal colleagues framed the chief justice’s opinion as a king-maker, giving presidents a loaded weapon to wield for their political gain. Justice Sonia Sotomayor said she feared for democracy because the court had created a law-free zone, giving the most powerful person in the country a path to murder without facing criminal liability.  

Bernstein noted Roberts didn’t rebut the dissent’s coup d’etat hypothetical. 

“It is no defense that his opinion covered this breathtaking immunity in a word salad and protests that the dissenters are overreacting,” Bernstein said. “If a future president ever tries a coup, John Roberts will have been an accessory. That legacy will be unfortunate for him but devastating for our country.” 

As the conservative wing gained control, court watchers started to see a jurisprudence more reflective of Roberts’ colleagues, specifically Justice Clarence Thomas. Alongside inaction to quell ethics scandals, the shift stirred speculation that Roberts’ control over the court was slipping. 

In one of the biggest rulings this term, however, Roberts is back in the driver’s seat. 

Condemnation of Roberts’ role in the court’s immunity shield for former President Donald Trump struck a chord for court watchers who recalled the Bush appointee’s characterization of judges’ role almost two decades ago during his confirmation hearings. Roberts said judges should be umpires, simply calling balls and strikes, not batting. 

John Dean, a former attorney for President Richard Nixon, said the Roberts court had instead “created a whole new ball game.” Characterizing the ruling as “judicial activism on steroids,” Dean said this type of immunity would have given Nixon a pass. 

Legal scholars say the Constitution’s text and the nation’s history are antithetical to the idea of a criminally immune leader, magnifying claims that the conservative majority is untethered to the historical restraints it extols, only following the Founders' footsteps when it suits its broader agenda. 

“This court has no interest in truly parsing text, history and tradition unless it supports a result they want to reach on other grounds,” Segall said. 

Mark Graber, a professor at the University of Maryland and scholar on constitutional law and politics, said the court’s ruling instead followed what made the most sense to the six conservative justices. 

“It's a pragmatic opinion — on that, I wind up disagreeing with the pragmatism — but it's by a court that in other circumstances eschews pragmatism,” Graber said. “And so what it tells litigants is our methods vary from case to case and we typically come out on the side of the Republican Party.”

Court watchers have poked holes in the Roberts court’s originalist jurisprudence for years, launching similar appraisals on rulings covering affirmative action, federal governing authority, guns, religion and, depending on who you ask, abortion. 

So the connection between those rulings and the court’s preference for Republican plaintiffs was not what shocked legal experts about the immunity decision. 

“Most court watchers, I think, understood on both sides of the equation that this court is extremely loyal to the Republican Party, and that's fine, they’re Republicans, they get to do that,”  Segall said. “What we didn't know was how loyal they are to Donald J. Trump.” 

Paul Schiff Berman, a law professor at George Washington University Law School, said it's worth noting that the majority of the justices making important decisions for the nation were appointed by presidents who did not win the popular vote. 

“They are seeking to impose their will on a population that broadly disagrees with them on issue after issue,” Berman said in an email. “That creates a crisis of legitimacy and a crisis for democracy, particularly when the court invents an immunity doctrine that is nowhere in the Constitution to potentially help an authoritarian leader gain power.” 

The ruling marked a significant moment in the court’s history, but it’s not clear how the decision will affect the country’s history. 

If Trump is reelected to the presidency, legal experts expect him to use the decision to stretch the boundaries of executive power. 

“If the Supreme Court were to rein that in, the damage of this decision would be less,” Segall said. “If the court does not rein it in, the damage will be more. I gotta tell you, though, I do not believe Donald Trump will obey Supreme Court decisions in a second term.” 

Not all court watchers believe the ruling was the biggest flashpoint of the term, pointing to another decision from the conservative majority overturning a four-decade-old precedent governing federal agency authority. 

“This is not the kind of thing I expect — or I really hope — is going to be a regular thing, whereas some of the administrative law cases actually are touching on issues that are a constant and regular feature in litigation and just the way the government interacts with its citizens,” Carrie Severino, president of the Judicial Crisis Network said.  

As with any ruling, predictions on how the decision will age can only be known with time. 

“This is a court that was both a product of a revolutionary Republican Party and an effort to push the revolution,” Graber said. “If the revolution is successful, this court will be hailed as the John the Baptist of American constitutionalism. If the revolution is unsuccessful, this court may go down as the worst court in American history. History will be written by the winners, and I don't know who they're going to be.”

Follow @KelseyReichmann

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