The amazing thing about Politico’s story on Thursday by global editor-in-chief John F. Harris and senior legal affairs reporter Josh Gerstein about a couple of Trump cases heading to the Supreme court is the lack of detailed discussions of the legal aspects involved in “John Roberts, Donald Trump and the ghosts of Bush v. Gore.”
Why? Because Harris and Gerstein are promoting the highly disingenuous idea that Chief Justice John Roberts, who they claim has a court credibility problem, should steer his fellow justices to deliver a split decision because of PR optics. I kid you not.
John Roberts has spent his 18 years as chief justice on a campaign to instill public confidence that the Supreme Court of the United States is on the level — committed to interpreting and applying the law in a principled and dispassionate way.
During that time, it’s become steadily more common to believe that the institution Roberts leads is fundamentally not on the level. A polarized age of politics, purity tests for judicial nominees, mounting ethics scandals about justices gallivanting with billionaires, and the overturning of Roe v. Wade have produced a court that often seems as angry, as divided and as cynical as the rest of the country. Most politicians and even legal commentators take it as a given that the most important decisions will hinge on the ideological affinities and grievances of the justices.
Roberts’ forlorn history is essential context for the choices that await the Supreme Court in the new year, when it will be one of the principal actors — possibly the decisive one — in the 2024 presidential election.
They turn to former Wall Street Journal legal reporter Stephen Wermiel to set the stage:
“I would think this would be a nightmare for John Roberts,” said Supreme Court historian Stephen Wermiel, a law professor at American University. “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.”
But everyone else is making sure that’s the case. So how to restore what Politico sees as a credibility problem for the High Court? Why they perform a magic split decision act! Embrace cynicism and forego the dispassionate stuff:
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. The presumed logic: Let voters decide, with all the information they need about Trump’s alleged criminal behavior before balloting begins.
“At one level, they want to deliver a mixed bag,” said David Garrow, another historian who closely follows the Supreme Court. “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.”
In other words: 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.
“One a ball and the other a strike.” Such a deal…NOT!
The Colorado Supreme Court ruling to remove Trump from the ballot is generally considered to be so absurdly weak that it is almost universally acknowledged that it will be struck down by the Supreme Court. The not so secret ulterior motive of Politico is for the Supreme Court to support Jack Smith’s argument that Trump does not have presidential immunity from prosecution. If the Supreme Court does support presidential immunity then that pretty much destroys Smith’s J6 prosecution. An outcome that Politico obviously dreads since Trump would not be tied up in court by lawfare during the campaign season.
Nice try, Politico, but no sale. Oh, and the next time you try a stunt like this, at least pretend to be concerned about the constitutional and legal issues involved. Otherwise you will again easily expose yourself as a partisan Democrat media outlet.