John Roberts embraces Donald Trump’s view of the presidency

By Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — Chief Justice John Roberts is so enamored with the image of a bold and fearless American president that he abandoned his usual restraint and declared a stunning level of immunity for a former president facing criminal indictment for trying to overturn an election.

The man who famously likened judges to umpires who merely call balls and strikes instead, to re-employ a baseball cliché, swung for the fences. Roberts expansively interpreted constitutional protection for any president who might be indicted and all but ensured that former President Donald Trump will evade a trial for subverting the 2020 election before the 2024 presidential contest.

Emphasizing the “unrivaled gravity” of presidential responsibilities and latching onto the term “fearlessly,” Roberts said a president makes “the most sensitive and far-reaching decisions entrusted to any official” and must be afforded the “maximum ability to deal fearlessly and impartially” with his duties.

Joined by five of his fellow Republican-appointed justices (three by Trump himself), Roberts adopted an unstinting vision of presidential immunity, his traditional regard for the stature of the judiciary eclipsed by an aspiration for the institution of the presidency.

Usually, Roberts cares about such overtly political divisions. Usually, he takes a more judicially institutional approach. He is also certainly aware that in previous weighty disputes over the separation of powers, the 1974 case of US v. Nixon, the 1997 case of Clinton v. Jones, the justices ruled unanimously – and both times against a sitting president.

In those cases, justices voted against the interests of the president who appointed them.

But that is not this court.

And the Roberts of today barely resembles the chief justice known for brokering compromises in politically charged disputes, including to uphold Barack Obama’s Affordable Care Act just months before the 2012 presidential election.

Today’s bench reflects the deep political polarization of the country. Where Roberts minimized the chaos propagated by Trump after the 2020 election, dissenting justices emphasized it. More substantively, they said Roberts’ “single-minded fixation on the President’s need for boldness and dispatch” defied constitutional history and relevant past cases.

In turn, Roberts ridiculed the three liberal dissenters, saying, “they strike a tone of chilling doom.”

Tense courtroom for opinion

There was a time when Roberts took pains to suggest disapproval of the norm-busting Trump, even publicly rebutting the former president’s attacks against the judiciary. But on Monday, Roberts provided a cool distillation of the events leading up to the January 6, 2021, assault on the US Capitol and avoided references to the former president.

Roberts, who served in the Ronald Reagan and George H.W. Bush administrations, has in the past favored executive branch prerogatives.

The resolution of Trump v. United States, however, is more sweeping and likely to define Roberts’ broader legacy as chief justice.

An appointee of President George W. Bush, Roberts will begin his 20th session in the center chair next October.

On Monday, as the 69-year-old chief justice read portions of his opinion from the bench, he made use of some of the most dramatic lines in his written opinion, asserting that if newly elected presidents were free to prosecute their predecessors, the result would be “an executive branch that cannibalizes itself.”

Roberts said that under “a pall of potential prosecution,” a president would hesitate to make decisions “fearlessly and fairly” and be rendered essentially ineffective. The president, he wrote, must be shielded from prosecution for any “core constitutional powers,” and “entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.”

The court’s new “presumptive immunity” offers Trump a substantial victory at this stage of the protracted case brought by Justice Department special counsel Jack Smith. Last August, Smith charged Trump with various counts of conspiracy, fraud and obstruction for the activities that culminated on January 6.

Justice Sonia Sotomayor, speaking for dissenters, heightened the rhetoric, condemning the majority for favoring Trump in a way that “reshapes the institution of the presidency” and “makes a mockery of the principle that no man is above the law.”

Her voice oozed disdain, as when she mocked Roberts’ references to “the bold and unhesitating action” required of an independent executive.  

In one of her especially impassioned points, the senior liberal justice told spectators the majority had given Trump “all the immunity he asked for – and more.”

Among the guests in the court’s VIP section near the bench was Jane Sullivan Roberts, wife of the chief justice. In the lawyers’ section sat Michael Dreeben, the Justice Department attorney who argued in April on behalf of Smith and will now, with the special counsel’s team, determine how to proceed.

(Roberts and Dreeben have long been connected. Before becoming a judge, Roberts was an appellate attorney. In his first Supreme Court case, in January 1989, he happened to face Dreeben, then an assistant US solicitor general. Roberts won.)

The case will return to US District Court Judge Tanya Chutkan, who earlier had rejected Trump’s claim of immunity, to determine which of Trump’s activities as he protested the 2020 election results might be deemed “unofficial” and subject to criminal liability. Trump had previously argued that virtually all his activities surrounding the 2020 election were “official actions” and shielded from criminal prosecution.

Defensive of SCOTUS’ handling of case

As he deflected from Trump, the person who brought the case, Roberts insisted that broad presidential immunity protects “the institution of the Presidency,” not an individual president.

Still, subtly mingled with such assertions was some defensiveness about the court’s handling of the Trump controversy. He said that the justices had “little pertinent precedent” to guide their review of the case – “a case that we … are deciding on an expedited basis, less than five months after we granted the Government’s request” to take up the issue.

But the majority in a one-sentence order last December rejected a request from Smith to hear the consequential immunity question sooner. The court did not schedule oral arguments until late April.

Earlier in December, Chutkan had ruled that Trump lacked any immunity from criminal prosecution. “Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote.

The DC US Circuit Court of Appeals affirmed, writing, “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

Endorsing that view, Sotomayor offered a reminder of how it all started.

“In a last desperate ploy to hold onto power,” she wrote, Trump “allegedly attempted to exploit the violence and chaos at the Capitol by pressuring lawmakers to delay the certification of the election and ultimately declare him the winner. That is the backdrop against which this case comes to the Court.”

Not for the chief justice.

“Unlike the political branches and the public at large,” he said, “we cannot afford to fixate exclusively, or even primarily, on present exigencies.”

Wrote Roberts: “Our perspective must be more farsighted.”

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