The behind-the-scenes machinations behind the Supreme Court’s sweeping presidential immunity decision reveals that Chief Justice John Roberts has “lost his authority” and ability to broker compromises on the thorniest and most impactful issues, a legal expert says.
The Supreme Court this summer ruled 6-3 that presidents have "absolute immunity from criminal prosecution" for acts that fall within the "exercise of his core constitutional powers he took when in office." Presidents, according to the ruling, have "at least presumptive" immunity from other official acts, and no immunity for unofficial acts.
The Supreme Court’s sweeping immunity decision has thrown a wrench into legal cases concerning Trump: a New York judge delayed sentencing for Trump’s 34 felony convictions of falsifying business records. And, the Supreme Court’s decision tasked U.S. District Judge Tanya Chutkan with weighing which acts are official and unofficial.
A CNN report by journalist Joan Biskupic revealed that Roberts “made no serious effort to entice the three liberal justices for even a modicum of the cross-ideological agreement that distinguished such presidential-powers cases in the past.”
Pace Law School Professor Bennett Gershman said Roberts has found himself alone, and found the task of finding compromises among far right-wing, conservative and liberal justices on the court “virtually impossible.”.
“Roberts finally has realized that his power of persuasion over the fiercely radical Justices Thomas, Alito, and Gorsuch, the conservatives Kavanaugh and Barrett, and the staunch liberal team of Sotomayor, Kagan, and Jackon, is at an end,” Gershman said. “He is alone all by himself, and he knows it.”
According to Gallup, public approval of the Supreme Court reached 43% in July 2024. That's down from 58% in July 2020, and 61% in September 2009.
Gershman said that Roberts is aware that the court’s “public reputation and perception of legitimacy is the lowest in history.”
“Despite his earlier claim that ‘there are no Trump Justices,’ he knows the truth; that five of his colleagues are indeed ‘Trump Justices’ and there’s nothing Roberts can do about it,” Gershman said.
Gershman called Roberts’ immunity decision “bold and extreme” and reflective of his realization that “his only choice was to supplicate” pro-Trump justices.
“To be sure, he’ll continue to assign to himself the big cases,” Gershman said.
But, he added: “He knows he has lost his authority and his Court and is all by himself.”
CNN's report, which cited sources familiar with the negotiations, also points out that Roberts has a long history of finding unanimity on contentious cases – including hashing out compromises in 2020 Trump document cases.
Boston University School of Law professor Jed Shugerman told Salon that particularly in the most recent Supreme Court term, Roberts has veered from institutionalism.
"There’s plenty in Trump v. U.S. and this term to know that Roberts has abandoned a chief’s justice institutional role," Shugerman said.
Shugerman said that the "Roberts opinion itself was so extreme and manufactured without historical evidence, without the commitment to originalism and without precedent, that it’s hard to imagine how that opinion could have ever been in any form something that the three moderate liberals might have found any common ground in."
Shugerman pointed out that Roberts failed to get Justice Amy Coney Barrett on board with the entirety of the opinion.
Barrett concurred in part with Justice Sonia Sotomayor's dissent, which argued that excluding "any mention" of an official act associated with a bribe "would hamstring the prosecution.'"
Roberts said a prosecutor pursuing a bribe charge could point to public record to show the president performed the official act and admit evidence of what the president "allegedly demanded, received, accepted, or agreed to receive or accept."
But Roberts said admitting testimony or private records concerning a bribe would invite the jury to "second-guess" the president's motivations for official acts — which he argues would "'seriously cripple'" a president's exercise of official duties.
Shugerman said that Roberts' footnote response to Barrett is part of his overall "incoherent" opinion.
Shugerman also criticized the court's March ruling in Trump v. Anderson, which reversed the Colorado Supreme Court decision excluding Trump from the 2024 GOP primary ballot based on Section 3 of the 14th Amendment.
He said the ruling also "reflected a lack of institutional mindset and disregard for consensus."
"Really, it just invented reason to reach a reasonable result," he said.
Shugerman said even though the conclusion may reflect common sense, its reasoning lacked solid historical grounding.
"There's growing consensus among originalists among all different stripes that the Roberts Court conservatives are not serious about methods and not serious about originalism," Shugerman said. "There's a growing number of originalists who are saying so out loud. It’s important to recognize how the Roberts court is not truly textualist or sincerely originalist. But it's abundantly clear it’s driven by conservatism, traditionalism and partisan ideology."
The CNN report found that far-right justices are heartened by Roberts, who at times has taken more centrist positions relative to other justices.
Georgia State University College of Law professor Eric Segall noted that Roberts has taken stances against affirmative action, abortion rights, voting rights and the Medicaid expansion portion of the Affordable Care Act.
The immunity decision stemmed from Trump’s charges for trying to overturn the 2020 election.
A D.C. federal grand jury indicted Trump on four charges in August 2023 accusing the former president of conspiring to thwart his 2020 electoral defeat and the peaceful transfer of power to President Joe Biden.
The Supreme Court's ruling said deciding whether Trump's alleged fake electors scheme "requires a close analysis of the indictment’s extensive and interrelated allegations."
CNN said that Roberts avoided references to the chaos and violence of a mob’s Jan. 6 march on the Capitol as he “found new immunity vested in the Constitution for a former president.”
Last December, U.S. District Judge Tanya Chutkan rejected Trump’s motion to dismiss the charges on grounds of absolute presidential immunity, which he argues completely shields him from prosecution for any actions taken while in office.
"There was broad understanding among the justices that they would need to decide the matter themselves, and only after the usual appellate court hearing," sources told CNN, adding that “Roberts believed that he could assert the large and lasting significance of the case and steer attention away from Trump.”
The Supreme Court's public information office did not respond to Salon's request for comment from Roberts.
