The former star appellate lawyer who allies once cast as the smartest person in the room remains confounded by the realities of Donald Trump.
Roberts was shaken by the adverse public reaction to his decision affording Trump substantial immunity from criminal prosecution. His protestations that the case concerned the presidency, not Trump, held little currency.
Unlike most of the justices, he made no public speeches over the summer. Colleagues and friends who saw him said he looked especially weary, as if carrying greater weight on his shoulders. On Monday, after he ascended the bench to formally open a new session, Roberts hewed to a familiar script and kept any emotion in check.
This is a fraught time for America’s highest court, as divisive rulings mount and controversy persists over the justices’ lack of an enforceable ethics code.
Roberts, who will turn 70 in January, faces a new slate of major cases to be heard in the coming months, including disputes over transgender rights, gun control, the death penalty and a possible return of Trump litigation. But perhaps the more significant immediate test of Roberts’ leadership will be litigation around the November 5 presidential election and the counting of votes.
The Roberts Court has been in sync with the GOP political agenda largely because of decisions the chief justice has authored: For Trump and other Republicans. Against voting rights and racial affirmative action. Against federal regulations over environmental, public health and consumer affairs.
Roberts’ pattern of favoring GOP interests has been entrenched by his decisions in such cases as the 2013 Shelby County v. Holder (gutting part of the Voting Rights Act) and the 2019 Rucho v. Common Cause (preventing US courts from stopping political parties from gerrymandering voting districts to their advantage).
But the politically charged valence deepened in the justices’ resolution of the case against former President Trump on election-interference charges from 2020. The court’s protracted action, even before its July 1 decision, ensured that Trump’s trial would not occur before his renewed bid for the White House, now against Democratic Vice President Kamala Harris.
The Supreme Court’s stature has shrunk, according to multiple polls. In July, for example, after the Trump immunity decision was released and the annual session ended, fewer than half of Americans (47%) expressed a favorable opinion of the court, according to a Pew Research Center survey.
That favorable rating was 23 percentage points lower than in August 2020, when the conservative supermajority on the nine-member bench took hold. Part of the drop no doubt tracks the court’s 2022 decision overturning abortion rights, a decision to which Roberts partially dissented.
Responses predictably differed based on people’s politics. Republicans held a far more favorable view of the Supreme Court than Democrats did, Pew reported.
Now, as a new term begins and a new round of election litigation looms, the question is whether Roberts will reinforce his conservatism or whether he will recalibrate as he has at other times. In 2020, for instance, he hedged on his opposition to abortion rights and retreated from prior sentiment against Obama-era protections for certain familial immigrants without documentation.
He is plainly mindful of his legacy.
“You wonder if you’re going to be John Marshall or you’re going to be Roger Taney,” Roberts told a law school audience in 2010, referring to the great 19th century chief justice and the latter chief who wrote the 1857 Dred Scott decision declaring that slaves were not citizens. “The answer is, of course, you are certainly not going to be John Marshall. But you want to avoid the danger of being Roger Taney.”
Roberts declined a CNN request for an interview.
