NY Times Big Reveals On Deliberations In Three Trump Cases

How did Roberts come to write Trump v. Anderson, Fischer v. United States, and Trump v. United States?

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, where he lost so many majority opinions? I can't recall any.

Kantor and Liptak suggest the change was related to the flag flag, but they do not know for certain.

The chief justice and Justice Alito did not respond to inquiries from The Times about the reason for the change. But the date of the new assignment, May 20, offers a possible clue. Four days earlier, The Times had reported on the upside-down flag that flew at the Alitos' Virginia home soon after the Jan. 6 insurrection at the Capitol.

Did Roberts not want the optics of an Alito majority opinion helping Trump on a January 6 case? Did Roberts want to at least give Alito the space to recuse, without disturbing the majority, if more allegations came out? Was Alito complicit here, or was he forced to abandon the opinion? What a remarkable turn of events.

KBJ Flipped Her Vote in Fischer

We know that the final vote in Fischer was 6-3. Justice Jackson joined the four conservatives, and Justice Barrett wrote a dissent, joined by Justices Sotomayor and Kagan. Justice Jackson's vote raised some eyebrows, especially since it could help Trump. Likewise, Jackson set out her independence by her vigorous questioning during oral argument in the insurrection case.

Kantor and Liptak related that KBJ switched her vote after Chief Justice Roberts took authorship of the majority opinion:

The change in authorship wasn't the last shift in the case. Soon after, Justice Ketanji Brown Jackson deployed her vote to change the outcome.

As in the Colorado case, the vote did not fall along strictly partisan lines. Justice Barrett, along with Justices Sotomayor and Elena Kagan, felt that prosecutors were entitled to charge rioters under the obstruction law. It appeared that Justice Jackson would stand alone. She agreed with the majority that the law had been applied too broadly, according to several court insiders. But she thought the others were going too far by reversing the lower court's judgment, tossing out the charge in the case before them and undermining many others.

Her intermediate position gave her leverage. She said she would join the majority if they would send the cases back to the lower courts to be reconsidered. The conservatives said yes. The final vote was 6 to 3, with Justice Barrett siding with the liberals and Justice Jackson with the conservatives.

Jackson's play here was powerful. Had she not gotten that concession, the majority would have simply resolved which issues are subject to immunity. But the majority, as a price of getting her vote, let Judge Nichols decide in the first instance how to resolve these issues. [Update: I previously wrote that Judge Chutkan had the remand; she has the immunity case.] During her much-discussed sit-down on The View, Justice Jackson commented on the "power" of her position. Yes, there is power when her vote is in play. And KBJ will use that power.

The Trump v. United States Memo

The biggest reveal is that Chief Justice Roberts sent his colleagues a confidential memo on February 22 about the immunity case, urging the Court to grant review on the case. Justices generally do not discuss a case before the conference, but here it seems that Roberts was getting ahead of the issue.

It is not clear that Kantor and Liptak have a copy of the memo, but instead cite "several people from the court who saw the document." This could mean a Justice or a clerk. I can't imagine who else in the building would have access to the document, especially after the heightened post-Dobbs security protocols. The memo "radiated frustration and certainty." Roberts "offered a scathing critique" of the D.C. Circuit's ruling, "calling it inadequate and poorly reasoned." Roberts charged that the panel "failed to grapple with the most difficult questions altogether." Roberts predicted that "we will view the separation of powers analysis differently."

And shortly after the memo, Justice Kavanaugh signed on board:

Just after the chief justice sent his Feb. 22 memo, showing that he was sympathetic to Mr. Trump's arguments, his position became stronger. Justice Kavanaugh responded the next morning, agreeing with the chief's logic, according to insiders who knew of the exchange. The three most conservative justices were presumably on board, and with two of the justices at the court's ideological center in agreement, the direction was clear.

When would Trump v. United States  be argued?

The other major question, however, is when the case should be heard. In the normal case, a petition granted in March 2024 would likely be heard in October of November 2024, with a decision by June 2025. Of course, this timeline would make it impossible to resolve the immunity issues before the election. Indeed, if Trump prevailed, the Court would never have to decide the case. In February, I speculated that the Court might take a slow approach, and avoid ever having to write the opinion for the ages.

The Court's liberals wanted to move with all deliberate speed

At the justices' private conference meeting that day, Justice Sotomayor protested that she did not see how the court could reverse the appellate decision. It would look like the Supreme Court was being used to delay the trial, she said, according to someone with knowledge of the proceedings.

So she and the other liberal justices focused on the crucial question of timing. Every day that the court waited to hear the case was a benefit to Mr. Trump, diminishing the possibility of a trial before the Nov. 5 election. At the meeting, some of the court's most conservative members said they did not want to hear the case until the start of the next term in October, according to several court insiders.

But the conservatives did not want to hear the case in April:

Justice Thomas, who favored scheduling the arguments in October, told colleagues that he did not want to see the court dragged into political battles.

Justice Gorsuch agreed. The matter was too important to rush, he said, and lawyers on the case would need time to prepare their strongest arguments.

On that schedule, the Supreme Court would not decide the immunity question until after the presidential contest. If Mr. Trump won, he could have the criminal case dismissed.

If I had to guess, Thomas was not trying to avoid being "dragged into political battles." Instead, Thomas likely said that the argument to rush the case was political. In other words, the only reason to hear oral argument in April was to have the decision before voters go to the ballot. Seth Barrett Tillman and I made a similar point about efforts to rush the special counsel case.

Here, at least, Roberts sided with the Court's liberals to hear the case in April:

During the February discussions of the immunity case, the most consequential of the three, some of the conservative justices wanted to schedule it for the next term. That would have deferred oral arguments until October and almost certainly pushed a decision until after the election. But Chief Justice Roberts provided crucial support for hearing the historic case earlier, siding with the liberals.

…

Once again, the chief justice's position prevailed: He preferred to hear the case in the current term, and Justice Kavanaugh was amenable. Oral arguments were set for two months later. While relatively fast by the court's usual standards, that timing frustrated many Democrats.

The Vote at Conference was 6-3

The final vote was 6-3-ish. To this day, I do not fully understand which portions of the majority opinion that Justice Barrett's joined.

Kantor and Liptak relate that the vote was 6-3 at conference, but Justice Sotomayor sought a compromise:

When the justices met in private shortly after the arguments, the six conservatives voted in favor of Mr. Trump and greatly expanding presidential immunity. The three liberals voted against. After the chief justice circulated a draft on June 1, and Justice Sotomayor responded that she would consider a partial compromise, her invitation appeared to go nowhere.

Kantor and Liptak provide some insights into the differences between Chief Justice Roberts and Justice Barrett, though much is unclear:

That left the chief justice with plenty of requests for changes from members of his own majority, but only one main challenger: Justice Barrett. After he filed his draft majority opinion, she seemed somewhat skeptical, saying she intended to vote with him, but could not join on three points, according to people familiar with the discussions.

What were those three points? At least one of them was about the evidentiary issue. I would need to give some more thought to the other two issues.

Kantor and Liptak offer a somewhat unusual observation–that all four of Roberts's law clerks were working on the case:

Inside the chief's chambers, all four of his clerks participated in a furious rewriting effort. Later, others at the court wondered if the chief justice had taken on too much. The writing of a majority opinion requires responding to suggestions and edits from other justices, addressing any dissents, and crafting an analysis to withstand scrutiny. He had assigned himself seven majority opinions over the term, five of them blockbuster cases.

I can't recall ever seeing such granular observations about how the clerks were working. It could be that the clerks were engaged in shuttle diplomacy with other chambers, so their workflow became widely known. But for Roberts, this was truly a term for the ages

Roberts did not consult with liberals in Trump v. United States

In June, I observed that the Chief Justice has shifted his strategy from the Dobbs term. In OT 2021, he was on the oustide, look in, and had lost functional control of his court. But in OT 2023, he was in the driver's seat, pushing his Court to the right in the Trump immunity case, as well as Loper Bright.  If you can't beat them, join them, I wrote.

Kantor and Liptak make a similar observation:

Two years earlier, as the other conservative justices overturned Roe v. Wade, the chief justice had been sidelined as he sought a middle ground that would restrict but not eliminate the constitutional right to abortion. In failing to persuade a single colleague to adopt his approach, he appeared to lose control of the court. This term he seemed determined to regain it.

Kantor and Liptak confirm my read of the opinon: Roberts had five solid votes, and made no efforts to seek the votes of the liberals:

Then he froze them out. After he circulated his draft opinion in June, Justice Sonia Sotomayor, the senior liberal, signaled a willingness to agree on some points in hopes of moderating the opinion, according to those familiar with the proceedings. Though the chief justice often favors consensus, he did not take the opening. As the court split 6 to 3, conservatives versus liberals, Justice Sotomayor started work on a five-alarm dissent warning of danger to democracy.

But Kantor reports that Roberts received fawning praise from Justices Kavanaugh and Gorsuch:

 Two days after the chief justice circulated his first draft in June, Justice Brett M. Kavanaugh responded to what he called an "extraordinary opinion."

In a final flourish, he wrote, "Thank you again for your exceptional work."

Soon afterward, Justice Neil M. Gorsuch added another superlative: "I join Brett in thanking you for your remarkable work."

Justice Frankfurter wrote Chief Justice Warren a similar note after Brown v. Board of Education. He said it was a day that would live in "glory."

I think that Gorsuch, for sure, did not anticipate the blowback the decision would receive. He was very defensive about the case on his press tour.

***

There is much more to consider her. I would also surmise that the torch of inside SCOTUS reporting has been passed from Biskupic to Kantor. I was critical of Kantor's "fringe" theory about the flag flag (1, 2, 3, 4) but she got the goods on Dobbs, Bruen, and now the Trump cases. Biskupic's latest reporting has fizzled out.