It looks like there will be a multi-part series with Joan Biskupic. Maybe five parts, like in the bad old days there were more Supreme Court leaks than the Titanic. The first part is moyle. Part 2 turns trump card immunity.
Frankly, there’s not a lot of insight here. Almost everything she writes can be inferred from simply reading the opinions. Again, I wonder how much of Joan’s information comes from actual insider sources, as opposed to people who are informed guessers. Let’s break it down chronologically.
first, a note on purchasing. Biskupik made it clear that Roberts “declined to comment.”
Roberts declined to answer CNN’s questions about his recent tenure and the case.
I don’t recall seeing similar denials in Biskupic’s past articles. I think Roberts wanted to make it painfully clear that he was not Biskupik’s source. I know this is a problem with Biskupik’s book on Roberts, some of which was said in the context of the Chief Justice. There is no doubt here.
secondwe understand that there was broad consensus to deny Jack Smith’s petition for certiorari pending judgment:
The immunity case first reached a judge in December. To move forward with the prosecution, Smith had tried to persuade the court to review the case early before the U.S. Court of Appeals took action. Following the U.S. appeals court’s ruling, Smith urged them to uphold the decision rejecting Trump’s immunity claim.
Both efforts by the special counsel were in vain. Sources told CNN that the judges generally agreed that they would need to decide the matter themselves and only after the usual appeals court hearing.
No one challenged the court order. This shows that there is consensus. But if the source confirms it, it must be true! In hindsight, would the justices have reached such a consensus if they had known how long the D.C. Circuit panel’s decision would take? I doubt it.
Relatedly, Smith has yet to move to expedite his appeal in the Eleventh Circuit—which Seth Barrett Tillman wrote should not be granted. Smith may simply be willing to let the case proceed through the normal process and hope there won’t be widespread precedent for the special counsel statute.
thirdAfter oral argument, the chief justice took the opinion to himself and made no effort to reach any compromise with the court’s left wing:
Sources familiar with the negotiations told CNN that the justices met privately in an oak-paneled conference room adjacent to the chief justice’s chambers and were immediately and clearly split, 6-3.
Roberts made no serious effort to attract the three liberal justices to even a modicum of cross-ideological agreement that has distinguished such presidential power cases in the past. He believes he can persuade people beyond Trump. . . .
Roberts may also realize that liberals simply won’t accept any version of his blanket presidential immunity.
This case has nothing to do with this president or any other president. This is about the presidency.
Sources familiar with the internal debate told CNN that Roberts believes he can assert that the case has significant and lasting significance and divert attention from Trump. As he wrote at the end of his opinion, “Unlike the political establishment and the public at large, we cannot focus solely, or even primarily, on the current emergency.”
Instead, Roberts will only negotiate a deal with conservative members of the court:
However, in a private meeting on the case the next day, there was no ambiguity in the vote on the central issue, with Roberts prepared to boldly write that the former president was entitled to presumptive, if not absolute, immunity from all official acts. right. Furthermore, unlike private conduct, Roberts interpreted official conduct broadly.
Sharp divisions between liberals and conservatives mean nearly all of Roberts’ negotiations will be between those to his right.
Roberts contented himself with a 6-3 majority, or a 5-4 majority if necessary, while Justice Barrett withdrew.
This brings us to Justice Barrett’s
thirdFor the second consecutive article, Barrett looked like a passionate, consensus-building moderate.
Barrett is the only justice on the right trying to bridge the gap with dissenting justices.
It’s unclear whether Biskupik had any inside information about what Barrett was doing. Everything written here can be entirely extrapolated from the published decisions. Like this part. Is this Biskupic’s speculation or inside information?
Overall, Barrett may have been trying to position himself in the middle. Barrett repeatedly separated from her conservative brethren during the annual meeting. Notably, she broke with them entirely in the Fisher case, when Roberts’ majority narrowed the scope of the federal obstruction of justice statute that had been used against dozens of defendants on Jan. 6.
I’d like to see some discussion about whether liberals would consider adding Barrett’s consent, perhaps overturning the majority. But we learned nothing.
fourthBiskupik writes, Roberts abandoned his traditional institutionalism during this term.
The 69-year-old chief justice, who is about to begin his 20th term, appears to have abandoned his usual focus on institutional issues. . . .
All in all, Roberts seems to have reached a turning point. His vision for the high court has become more radical, and he may have shed the aura of incompetence that has pervaded some public comments in recent years.
He has reserved the most important cases for himself, including one that overturned a 1984 precedent that gave federal regulators considerable power over health care, food and drug safety, the environment and consumer affairs. (As chief justice, Roberts carried out most of the opinion-writing duties; he often handled high-profile cases, but in the past split the task more evenly among the eight associate justices.)
The conservative justices seemed to agree more with Roberts — not surprising, since he also agreed with them.
At the same time, he got along better with his conservative colleagues.
People close to the far-right justices told CNN that the justices were encouraged by Roberts, whose efforts in the middle of the bench have been met with skepticism for years, most notably his 2012 vote in favor of the Affordable Care Act.
Biskupik also said Roberts stood alone Dobbs.
That’s not the case this year, and it’s very different from 2022, when Thomas and other conservatives pushed for the Dobbs ruling and Roberts stood alone between resentful factions. The Chief Justice rebuked colleagues on both sides for their “always lack of skepticism on legal matters”.
This year, he took a step to the right and showed no doubt about it.
I later made a very similar point Loper Bright Decide:
Why did Roberts pull the trigger? Loper Bright– especially after he briefly stopped Kishore? I think Roberts was personally humiliated by his inability to compromise on the issues Dobbs, and being trapped on the outside looking in. Once Roberts realizes there are five votes to veto Chevron, he didn’t want to be left out. If you can’t beat them, join them.
I don’t know how long the Roberts settlement will last. Let’s see who wins the election.
In the end, we find this charming vignette hat doesn’t really advance any narrative:
When the justices draft opinions, the courts follow age-old conventions. Law clerks schedule their traditional final skit in late June. Justices Roberts and Clarence Thomas continue with a planned gathering of former law clerks. For the first time in several years, Roberts is preparing to teach in a Boston-sponsored summer abroad program in Galway, Ireland.
Continuing with the theme, the courthouse is really like a reality show, with alliances constantly changing, although no one can vote off the island.
