I understand one has to like to read about what the upper courts are doing, how they decide, and why they make decide as they do. It is obvious why Roberts and the other five decide the way they do. I will let you figure out what the basis is for their decisions. Roberts lates has reaped a public whirlwind of well-deserved criticism. Supreme Court analysis: John Roberts knows he lost the public. – by Dahlia Lithwick SLATE You would be forgiven were you to find yourself suffering from some version of motion sickness when reading about Chief Justice John Roberts’ worldview at the start of this new Supreme Court term. The chief justice, or so the legend holds, was a moderate conservative until he became a moderate moderate, until he morphed
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I understand one has to like to read about what the upper courts are doing, how they decide, and why they make decide as they do. It is obvious why Roberts and the other five decide the way they do. I will let you figure out what the basis is for their decisions. Roberts lates has reaped a public whirlwind of well-deserved criticism.
Supreme Court analysis: John Roberts knows he lost the public.
– by Dahlia Lithwick
SLATE
You would be forgiven were you to find yourself suffering from some version of motion sickness when reading about Chief Justice John Roberts’ worldview at the start of this new Supreme Court term. The chief justice, or so the legend holds, was a moderate conservative until he became a moderate moderate, until he morphed into a MAGA warrior last term. He was a humble minimalist until he turned into a grasping maximalist. He started his reign as chief justice as a coalition forger and then changed into a coalition destroyer. And as we continue to scratch our heads over where he has come from and where he has gone, one final mystery continues to confound: What ever happened to the chief’s legendary capacity to read the room?
Joan Biskupic’s reported piece in CNN this week, about the chief justice’s very extremely bad summer, bears the slightly misleading title “John Roberts Remains Confounded by Donald Trump as Election Approaches.” But as the analysis itself makes clear, it’s not the former president who is confounding the chief. It’s the general public. Roberts, according to observers, “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.” As a consequence, reports Biskupic, “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.”
This echoes precisely the blockbuster New York Times reporting from last month from Jodi Kantor and Adam Liptak, who also pointed out that Roberts had convinced himself last term that he would be able to razzle-dazzle the nation with soaring constitutional rhetoric in his immunity opinion, in ways that would lower the temperature in the public fury at the high court post-Dobbs: “In his writings on the immunity case,” write Kantor and Liptak,
The chief justice seemed confident that his arguments would soar above politics, persuade the public, and stand the test of time. His opinion cited “enduring principles,” quoted Alexander Hamilton’s endorsement of a vigorous presidency, and asserted it would be a mistake to dwell too much on Mr. Trump’s actions.
“In a case like this one, focusing on ‘transient results’ may have profound consequences for the separation of powers and for the future of our Republic,” he wrote. “Our perspective must be more farsighted.”
Of course we all know how that worked out. And so, reportedly, does Roberts (or at least he does now). As the Times piece wryly observed, “the public response to the decision, announced in July on the final day of the term, was nothing like what his lofty phrases seemed to anticipate.” Both the CNN and Times accounts would seem to suggest, then, that it is not that Roberts’ politics or ideology shifted last term, when he handed former President Donald Trump three consequential, broad victories, each of which appeared in an opinion that Roberts wrote himself. What seems to have fundamentally changed was Roberts’ capacity to anticipate that there would be a backlash.
Veteran SCOTUS watcher Linda Greenhouse made this point a few weeks ago, in responding to the same New York Times reporting, in a conversation on Amicus. As she mused:
“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? … What this says to me is that he and other members of his majority live in a kind of bubble.”
Perhaps it’s not MAGA Roberts that should chill us to the bone, so much as Bubble Roberts, a man who only hears that he is right in all things, until the majority opinion hits the fan.
As we barrel into a presidential election that could very well be decided by a Bush v. Gore–type decision at SCOTUS, what are we supposed to make of all this? The chief justice was meant to be the one with the savvy to understand the stakes for the court and the country. But Roberts has either developed a tin ear when it comes to public opinion, or—more worrying still—he has not just “frozen out” the liberal justices, as Kantor and Liptak put it last month, but has actually frozen out any feedback or media sources that might have warned him that the public mood was not going to be welcoming of near-blanket immunity from a coup-fomenting president, even if that decision came trussed up in magisterial language about the separation of powers and the safeguarding of the “unitary executive.” What this means for November is anybody’s guess. But what it means most profoundly is that he may no longer be receiving the Bat Signals from the Republic.
Who on earth—one might wonder—could possibly have warned Roberts, in advance of authoring his immunity decision, that none of this would go down smoothly with an American public that had twice heard Trump’s lawyers seeking protections for SEAL Team 6 assassinations of political rivals? Well, pretty much anyone, as Greenhouse told me, outside of the Wall Street Journal opinion pages and the immunity defenders who offered up laudatory quotes about the Roberts immunity opinion to CNN’s Biskupic. And what that really means going into the 2024 election is that John Roberts, moderate centrist, is not lost to us, so much as is John Roberts, the uncannily keen reader of the public sentiment. And whether Roberts has opted to surround himself with the voices of MAGA enthusiasts, or simply to tune out the voices of anyone who might criticize the court for anything, is almost immaterial. What it signals is that he may be subject to the same hermetically sealed information bubbles that now make every court critic into a vicious hater and every principled objector into a witch hunter. If Justice Clarence Thomas’ performance in Wednesday’s Glossip arguments signaled anything, as Mark Joseph Stern points out, it’s that there is no public misconduct that can’t also be ably defended as a slanderous conspiracy now.
At minimum, the fact that the new John Roberts may be tuning out any of the voices that are critical of the high court’s current public approval trajectory would explain why he has failed absolutely to take seriously the ethics violations of his colleagues; failed to show up for congressional hearings when summoned; and even seemingly failed to concern himself with the court’s nosediving public confidence numbers. If you can persuade yourself that absolutely every critique is a left-wing conspiracy to discredit the integrity of the institution, then nothing negative said about the court need be taken seriously. And once you have lost your ability to read the room—because you think the room is full of liars, whiners, and liberal operatives—you are going to keep misjudging how much rank partisanship the American public will tolerate. As Judge Nancy Gertner and professor Stephen Vladeck put it earlier this week,
“For as much as some on the court and its public defenders may see calls for reform from people like us as a threat to the institution, continuing to act in a way that erodes whatever credibility the court has left is an even greater threat—not just to the court, but to the Republic.”
John Roberts, unlike Justices Samuel Alito and Thomas, was never really a shoot-the-messenger type, which is why he has, for most of the past two decades, been able to match the court’s behavior to the outer limits of the public mood. If that is no longer the case, if he now finds himself surprised that the country isn’t buying what he is selling, the “greater weight” Biskupic describes him as carrying may not be the sacks of negative feedback landing on his baffled shoulders. It might just be the burden of not knowing—or even caring—where the backlash is coming from and how it got there. If and when the court loses the public’s trust, he will be shocked to learn about it. And that is a burden we will all have to carry.