When John Roberts Plays Both Sides

From the Center

Most of America would find the term “principled Trump-hater” to be either unnecessarily redundant or offensively oxymoronic. (In fairness, the label “principled Trump-backers” will be viewed by the same people as equally repetitive or contradictory – just in reverse.) But those who embrace either designation should also be comfortable with a Supreme Court that allows the next president to be chosen by voters rather than judges. 

The path that will take John Roberts and his colleagues to that goal will be politically and constitutionally precarious. The 2024 presidential campaign is littered with judicial landmines, any one of which could provide a potentially insurmountable advantage to one of the likely party nominees.

Donald Trump is facing four criminal indictments, 91 felony counts and a range of civil lawsuits. But two cases in particular have the potential to dramatically reshape the political landscape this year: the question of whether Trump should have immunity from alleged crimes committed during his time as president and whether he should be allowed to remain on the ballot given his role in the January 6 Capitol riots surrounding his efforts to remain in office.

The Court rejected a request last week by special counsel Jack Smith to expedite their decision on Trump’s immunity, which sent the matter to the U.S. Court of Appeals for Consideration before the Supreme Court would hear the case. Judicial experts saw this as a significant benefit to Trump’s chances, since the slower and more conventional process is likely to delay the beginning of Trump’s trial for his efforts to overdue Biden’s 2020 election victory. But Roberts and his fellow justices will also be forced to consider the Colorado state Supreme Court’s decision issued a few days earlier that disqualified Trump from that state’s primary ballot. Viewed together, these two seminal cases could provide a roadmap to navigate a hyper-polarized political environment in which both sides will be watching for any sign of partisan leanings from the Court – and ready to scream bloody murder if they see the justices ruling against their interests.

This would be an excruciatingly difficult challenge for any set of justices. But for Roberts, who sees himself as the guardian of the Supreme Court’s reputation and devotes immense amounts of time and effort to try to fashion consensus amongst his fractious colleagues, the task will be particularly arduous. No matter how the Court rules on either of these cases, the losers will attack them not just for being wrong but for intentionally attempting to skew the election outcome.

Both Trump allies and foes have been preparing their respective arguments since Smith made his request to the Court on the immunity question, creating a no-win situation for Roberts and his desire to be viewed above the political fray. But the Colorado justices may have provided the U.S. Supreme Court with an escape hatch which would not only allow them to split the difference by giving a victory to both sides but also claim an overriding principle to place on top of a very practical set of decisions.

That principle – that voters should decide elections rather than judges – is unassailable. Overturning the Colorado decision so that Trump can appear on the ballot will allow the people of that state and others to decide for themselves whether his past conduct should influence their vote, rather than having the decision made for them. Then ruling that Trump does not enjoy immunity will allow those same voters to make their decisions based on a full understanding both of the charges against the former president and an equally complete exposure of his defense.

From a purely practical standpoint, such a balancing act gives the Court the opportunity to provide some reassurance to both sides that the judicial deck is not stacked against them. While that won’t allow Roberts to avoid the howls of outrage from both sets of true believers, the vast electoral middle will be able to once again see the nation’s top court as an honest arbiter of such high-stakes decisions.

Roberts has fought throughout his career to establish the Court in just that light. But as Trump’s appointees have moved the decision-making center decidedly rightward, Roberts has been frustrated and often helpless to prevent the growing public perception of a highly partisan Supreme Court and an accompanying decline in their approval ratings. How ironic it would be for the embattled Chief Justice if Trump’s legal battles provided the court with a path back to respectability.

Want to talk about this topic more? Join Dan for his webinar "Politics In The Time of Coronavirus." Or read more of Dan’s writing at: www.danschnurpolitics.com.

Dan Schnur is a Professor at the University of California – Berkeley, Pepperdine University, and the University of Southern California, where he teaches courses in politics, communications and leadership. Dan is a No Party Preference voter, but previously worked on four presidential and three gubernatorial campaigns, serving as the national Director of Communications for the 2000 presidential campaign of U.S. Senator John McCain and the chief media spokesman for California Governor Pete Wilson. He has a Center bias.

This piece was reviewed and edited by Isaiah Anthony, Deputy Blog Editor (Center bias).