'Nightmare for John Roberts': How 'two Trump curveballs' may be 'decisive chapter' for SCOTUS’ 'legitimacy'

21 December 2023

In a Thursday, December 21 report from Politico Global Editor-in-Chief John F. Harris and senior legal affairs reporter Josh Gerstein, the pair highlight the fact that the two lingering Donald Trump cases going into 2024 place a spotlight on US Supreme Court Chief Justice John Roberts' leadership.

During his almost two decades as chief justice, Harris and Gerstein note that "it's become steadily more common to believe that the institution Roberts leads is fundamentally not on the level." Meaning, it's not "committed to interpreting and applying the law in a principled and dispassionate way."

Robert's reputation as leader "is essential context for the choices that await the Supreme Court in the new year," Harris and Gerstein emphasize. First, in deciding whether Donald Trump is immune from prosecution, in response to special counsel Jack Smith's request. Second, in ultimately deciding the Colorado Supreme Court's Tuesday, December 19 decision that Trump is disqualified from the 2024 Republican primary ballot under the 14th Amendment.

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"The convergence of the two cases," Harris and Gerstein write, "may prove to be the decisive chapter for the doubts about legitimacy that have haunted the court for nearly a quarter-century, even before Roberts joined." They add that "It was during Bush v. Gore in 2000 that the notion that the court could be driven not just by philosophical differences — a constant in court history — but by naked partisan calculations first took hold."

Harris and Gerstein note, "Faced with two Trump curveballs, the court could call one a ball and the other a strike. That may be the outcome that best preserves whatever's left of the court's institutional capital. It's also precisely the sort of middle-ground instinct that has left Roberts a lonely figure on an increasingly polarized court."

Supreme Court historian and American University law professor Stephen Wermiel said, "I would think this would be a nightmare for John Roberts. The last thing I could imagine he would want is for the court to find itself pretty much deciding critical issues about the 2024 election."

Harris and Gerstein report:

One scenario, though, might appeal to Roberts, if he can manage to corral enough votes from the court’s key coalitions: the hard-right flank, the more pragmatic-minded conservatives and the increasingly isolated liberals. As described by POLITICO legal editor James Romoser , it would have the court project its supposed independence by making two moves in swift succession: Strike down the Colorado decision and ensure that Trump can continue running for president, while also endorsing Smith’s argument that Trump is not immune from prosecution and that a trial should take place before November 2024.

"At one level, they want to deliver a mixed bag," Supreme Court historian David Garrow said. "So, Trump loses on immunity, but scores a narrow win on the 14th Amendment. If you're being calculating, reputationally calculating — as we're for the moment assuming Roberts very much is — that's where you come down."

Politico's full report is here.

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