What Trump’s Immunity Ruling Says About the Roberts Court

Throughout the litigation over Donald Trump’s immunity that led to the Supreme Court’s decision earlier this month, questions have abounded about if the court would intervene to decide the issue, When he would do it, and how — including whether the Court could reach a unanimous opinion on presidential power as it has historically done. When we finally learned of the decision on July 1, we learned that the Court was far from unanimous in Chief Justice John Roberts’ majority opinion granting Trump (and other former presidents) broad criminal immunity.

A new report sheds light on the court’s deliberations and Roberts’ new rightward shift, suggesting that a partisan divide over presidential immunity was seemingly inevitable under the chief justice.

According to a report by Joan Biskupic, Roberts’ biographer and CNN’s chief Supreme Court analyst, which has not been confirmed by NBC News or MSNBC, sources familiar with the court’s deliberations said there was “an immediate and clear 6-3 split” in the case. Biskupic reported that Roberts “made no serious effort to convince the three liberal justices to adopt even a modicum of the cross-ideological agreement that has distinguished such presidential powers cases in the past. He thought he could persuade people to look past Trump.” Roberts reportedly declined to answer CNN’s questions about the recent term and this case.

In short, the Court could have taken up the immunity issue in December, when special counsel Jack Smith asked the justices to do so at an earlier stage of the litigation in the federal election interference case. The Court declined. After the federal appeals court ruled against Trump, the Supreme Court granted review of his appeal in February, but did not schedule a hearing until the last day of oral argument of the term in late April—in effect, the Court scheduled a new last day for the immunity case. The July 1 decision came on the final day of the term, just months before a presidential election that could result in Trump crushing his federal cases if he wins.

The decision was 6-3, with Republicans in the majority, though Trump appointee Amy Coney Barrett disagreed with part of Roberts’ opinion that limited the use of evidence from official acts to prove guilt for private conduct. That part of the decision called into question Trump’s guilty verdicts in New York state, which were not at issue in his appeal of federal election interference. President Joe Biden has just called for a constitutional amendment — the “No One Is Above the Law” amendment. — to counter the decision.

So what does Roberts’ handling of the immunity appeal tell us about himself and his court? Biskupic wrote that the chief justice “appears to have abandoned his usual institutional concerns.” That’s one way to look at it.

Another argument is that his reputation as an institutionalist has long been overrated, at least when it comes to his decisions—which, of course, have not always represented the Court’s right-wing wing, such as his concurring opinion in Dobbs, which would not have overturned Roe v. Wade; the other five Republican-appointed justices have done so without him. But perhaps that says more about the fact that this far-right court does not need Roberts’s vote to achieve its goals. The immunity episode, then, suggests that the chief justice is not only eager to join the Court’s rightward march, but also to lead the way.

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