NY Times Big Reveals On Deliberations In Three Trump Cases
The front page of today’s New York Times blares the headline “How Roberts Shaped Trump’s Supreme Court Winning Streak.” The piece by Jodi Kantor and Adam Liptak delivers on providing the inside scoop of the three Trump cases: Trump v. Anderson, Fischer v. United States, and Trump v. United States. Like with Joan Biskupic’s reporting (1, 2, 3, 4), much of what Kantor and Liptak report can be deduced from the opinion assignments and the final work product. But the Times offers some new insights that could not be inferred. Indeed, it seems clear that they have several high-ranking sources. Though, I will place one note at the outset: they offer inside information about eight of the nine Justices. But there is nothing about the thinking of Justice Kagan. Her fingerprints are wiped clean–like with a cloth.
Trump v. Anderson
Kantor and Liptak report on the deliberations in Trump v. Anderson.
So could Colorado kick Mr. Trump off the ballot in its Republican primary, creating an obstacle for his presidential campaign?
From the start of the justices’ private discussions of the case, Trump v. Anderson, it was clear that the court was going to say no, according to several people at the court familiar with the conversations.
This outcome should not been surprising based on the tenor of the oral argument. And, it seems that Roberts made extremely conciliatory efforts to craft a majority opinion, in the spirt of Chief Justice Warren with Brown v. Board of Education:
This time, Chief Justice Roberts told his colleagues he wanted the decision to be unanimous and unsigned. In any politically charged case, agreement among the justices made the decision more authoritative. He even said he would consult individually with everyone to discuss what they would accept — a rare step.
I think this justice-by-justice consultation resulted in an opinion that was so narrow and specific that it failed to resolve much beyond the bottom line issue. In this regard, there are indeed some similarities between Trump v. Anderson and Brown v. Board of Education. Alas, Chief Justice Roberts’s efforts to obtain unanimity on all grounds failed. We learn that four conservatives were pushing Roberts to go further:
While all nine justices agreed that Mr. Trump should remain on state ballots, four of the conservatives were pushing to go beyond that and rule that the Constitution’s prohibition would require congressional action to take effect. Such a decision would provide greater protection for Mr. Trump: To prevent him from taking office if he won re-election, Congress would have to vote to enforce the insurrectionist ban.
If I had to guess, the four were Justices Thomas, Alito, Gorsuch, and Kavanaugh. For sure, Barrett was not among them, as she would tell us in her concurrence. They knew full well how important it was to settle this issue, and not let it linger till January. But these four left Roberts with a choice. If Roberts did not address the role of Congress, then the conservative quartet may have written separately, depriving the Court of a unified decision. But if Roberts addressed these issues, then Sotomayor, Kagan, and Jackson would fracture off, as would Barrett. What would Roberts choose? He joined the conservatives.
That left the chief justice in control of the outcome. He lingered over the choice, those familiar with the process said. Ultimately, he sided with the four conservatives in an opinion that he wrote but that was issued unsigned. Justice Amy Coney Barrett and the three liberals wrote concurrences saying the majority had gone too far. Although the judgment was 9 to 0, the justices had not reached true agreement.
Contra Will Baude and Michael Stokes Paulsen in the Harvard Law Review, I think there is much to praise in the per curiam decision. Roberts had an almost impossible task, and he had to shepherd a decision on a compressed timeline before the Colorado primary. All things considered, Chief Justice Roberts did about as well as he could in this case.
I regret, though, that Kantor does not have any insights into whether Justice Sotomayor’s opinion was originally styled as a dissent, and why it seems to respond to portions of the majority that were not there. Likewise, what to make of Justice Barrett’s concurrence calling out the majority for strident language, while chastising the dissent in strident langauge.
Alito lost the majority in Fischer
At the end of each term, I try to offer predictions of which Justice will write majority opinions in each case. Based solely on counting, I surmised that Alito lost majority opinions in the NetChoice cases as well as Gonzales v. Trevino. Joan Biskupic’s reporting confirmed my speculation.
There was one other prediction, however, that I never quite figured out. On the last week of the term, I predicted that Justice Gorsuch had the majority opinion in Fischer. But it turned out Roberts had the Fischer majority and Gorsuch had Grant’s Pass. According to Kantor and Liptak, Alito in fact lost Fischer, yet another majority opinion. And the authors tie the switch to the flag flap:
After oral arguments in April, a majority of the court, including the chief justice, privately concluded that prosecutors had erred. It appeared that the result would narrow, overturn or prevent convictions of some Capitol rioters. It also seemed poised to imperil some of the charges against Mr. Trump, which included obstructing Congress’s certification of the 2020 election.
The chief justice assigned the opinion to Justice Alito, according to several court insiders. But a month later, Chief Justice Roberts updated the court: Justice Alito was no longer the author. The chief justice was taking over the opinion.
Outside the court, the switch went undetected. Inside, it caused surprise. To change authors without the judgment itself shifting was a break from court procedure, several court insiders said.
If this reporting is correct, Alito lost majority opinions in NetChoice, Trevino, and Fischer. Has any Justice ever had such a term,
Article from Reason.com
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