When Richard Nixon refused to comply with the Senate Watergate committee’s subpoena to turn over his White House tapes, the standoff resulted in litigation which made its way to the Supreme Court.
In an 8-0 decision (Justice Rehnquist recused himself), the Court ruled against Nixon and directed him to turn over the tapes to Congress.
Much like Nixon, the Trump Administration is refusing to comply with a lawful congressional subpoena for the full, unredacted Mueller report (and its supporting documents).
How would the current conservative Supreme Court rule on Trump’s clear defiance of established law?
There is little doubt this Court would be divided. No unanimous decision here, folks, as in United States v. Nixon.
You can bet on a 5-4 decision, either way.
Since Justice Anthony Kennedy retired from the Court, Chief Justice John Roberts has become the de facto “swing vote.” With four solid conservatives on the bench, now that Trump has been able to get Gorsuch and Kavanaugh to join the other two right-wing ideologues (Thomas and Alito), how would Roberts vote?
If Roberts joins his conservative colleagues, you can pretty much forget about the rule of law, and the Constitution for that matter, in this country. We will have a kneecapped congress unable to fulfill its oversight responsibilities, and we’ll have entered a new era of unchecked, unrestrained executive powers.
If Roberts sides with the four liberals on the Court, Ginsburg, Breyer, Sotomayor and Kagan, we will remain a nation that honors the Constitution and the separation of powers. The decision would serve as a strong rebuke to a lawless president and administration.
So what would Roberts do if some form of United States v. Trump makes its way to his court?
If you remember, much to the dismay of conservatives, Roberts was the deciding vote which upheld Obamacare (Affordable Care Act.)
Roberts is what I would label a principled conservative jurist who actually cares about the Court’s reputation and how history will judge him and his court.
As Michael O’Donnell writes in TheAtlantic, “Roberts is the most interesting judicial conservative in living memory because he is both ideologically outspoken and willing to break with ideology in a moment of great political consequence. His response to the constitutional crisis that awaits will define not just his legacy, but the Supreme Court’s as well.”
While he has sided with his conservative colleagues in 87.5 percent of 5–4 decisions, I’m betting there is a better than 50-50 chance Roberts will do the right thing and tell Trump and his cabal of corrupt cohorts they are not above the law.