By Adam Liptak and Alicia Parlapiano Updated July 9, 2020
In the Supreme Court’s first full term since the arrival of Justice
Brett M. Kavanaugh shifted it to the right, the justices confronted
an unusually potent mix of political and social issues in the middle
of both a presidential election year and a public health crisis.
A recent survey from researchers at Harvard, Stanford and the
University of Texas suggests that the public aligns with the court's
major decisions this term. A notable exception: The court ruled
that the president may for now block disclosure of his financial
records to Congress, but 61 percent of Americans do not believe he
should be able to do so.
7-2DECIDED
JULY 9
Presidential Power
In Trump v. Mazars USA, the court ruled that Mr. Trump may for now block
disclosure of his financial records to House committees.
LIBERAL BLOC CONSERVATIVE BLOC
The Supreme Court Aligned With Public
Opinion in Most Major Cases This Term
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October Term 2019
Sotomayor Ginsburg Kagan Breyer Roberts Kavanaugh Gorsuch
Where the public stands
A president should not be able to
block turning over his financial
records to Congress
A president should be able to
block turning over his financial
records to Congress
All 61% 39%
Democrats 85% 15%
Independents 60% 40%
Republicans 32% 69%
Question wording: A congressional committee has requested records related to President Trumpʼs
taxes and finances from his activities prior to becoming president from his accounting firm and
other companies. Some people believe that a president should be able to block such companies
from turning over his financial records to congressional committees. Other people believe that the
companies must comply with the congressional committeeʼs request. What do you think? | Source:
SCOTUSPoll
7-2DECIDED
JULY 9
Presidential Power
In Trump v. Vance, the court ruled that Mr. Trump cannot block disclosure
of his financial records to New York prosecutors.
LIBERAL BLOC CONSERVATIVE BLOC
Alito Thomas
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Sotomayor Ginsburg Kagan Breyer Roberts Kavanaugh Gorsuch
Where the public stands
Prosecutors have the right to
obtain a presidentʼs tax records
A president does not have to turn
over his tax records to prosecutors
All 61% 39%
Democrats 86% 15%
Independents 63% 37%
Republicans 28% 72%
Question wording: New York state prosecutors are conducting a criminal investigation of President
Trump. They have requested financial records related to Mr. Trumpʼs taxes and finances from his
activities prior to becoming president from his accounting firm and other companies. Some people
believe that New York state prosecutors have the right to obtain a presidentʼs tax records. Others
believe that a president does not have to turn over his tax records to state prosecutors. What do
you think? | Source: SCOTUSPoll
5-4DECIDED
JULY 9
Native Americans
In McGirt v. Oklahoma, the court ruled that much of eastern Oklahoma is
an Indian reservation.
LIBERAL BLOC CONSERVATIVE BLOC
Alito Thomas
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Sotomayor Ginsburg Kagan Breyer Gorsuch
7-2DECIDED
JULY 8
Contraception
In Little Sisters of the Poor v. Pennsylvania, the court ruled that the Trump
administration can allow employers to deny contraception coverage to
female workers on religious or moral grounds.
LIBERAL BLOC
Kagan Breyer
CONSERVATIVE BLOC
Roberts Kavanaugh Alito Gorsuch Thomas
Where the public stands
Employers should be forced to
cover contraceptives
Employers should not be forced to
cover contraceptives
All 47% 53%
Democrats 66% 34%
Independents 42% 58%
Roberts Kavanaugh Alito Thomas
Sotomayor Ginsburg
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Republicans 31% 69%
Question wording: The Affordable Care Act requires that health insurance plans for women include
coverage for contraceptives (birth control), but the Trump administration recently passed
regulations that greatly expanded exceptions to this mandate to include exemptions on the basis of
religious or “moral” objections. Some people think that employers should not be forced to cover
contraceptives if they express either a religious or a “moral” objection. Other people think that
these employers should be forced to cover contraceptives. What do you think? | Source:
SCOTUSPoll
7-2DECIDED
JULY 8
Religious Employers
In Our Lady of Guadalupe School v. Morrissey-Berru, the court ruled that
employment discrimination laws do not apply to teachers at religious
schools.
LIBERAL BLOC
Kagan Breyer
CONSERVATIVE BLOC
Roberts Kavanaugh Alito Gorsuch Thomas
9-0
DECIDED
JULY 6
Electoral College
In Chiafalo v. Washington, the court ruled that states may require members
of the Electoral College to vote for the candidates they had pledged to
support.
Sotomayor Ginsburg
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LIBERAL BLOC
Sotomayor Ginsburg Kagan Breyer
CONSERVATIVE BLOC
Roberts Kavanaugh Alito Gorsuch Thomas
Where the public stands
States should be able to require
electors to vote for the candidate
who won their state
States should not be able to
require electors to vote for the
candidate who won their state
All 61% 39%
Democrats 65% 35%
Independents 60% 40%
Republicans 59% 41%
Question wording: In the U.S., the president is chosen by the Electoral College, comprised of
“electors” from all 50 states and the District of Columbia. Some people think that states should be
able to require Electoral College electors to vote for the person who won the majority of votes in
the state and not some other person. However, some people think that electors should be able to
vote for whomever they want. What do you think? | Source: SCOTUSPoll
5-4
DECIDED
Church and State
In Espinoza v. Montana Department of Revenue, the court ruled that states
may not exclude religious schools from programs that provide scholarships
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JUNE 30 to students attending private schools.
LIBERAL BLOC CONSERVATIVE BLOC
Roberts Kavanaugh Alito Gorsuch Thomas
Where the public stands
States should be allowed to ban
the use of subsidized
scholarships for religious schools
States should not be allowed to
ban the use of subsidized
scholarships for religious schools
All 37% 63%
Democrats 46% 54%
Independents 37% 64%
Republicans 26% 75%
Question wording: The state of Montana has banned students from using taxpayer-subsidized
scholarships to attend religious schools. Some people think this rule is an acceptable restriction.
Other people think this rule violates peopleʼs constitutional rights. What do you think? | Source:
SCOTUSPoll
5-4
DECIDED
JUNE 29
Abortion
In June Medical Services v. Russo, the court ruled that a Louisiana law
violated the Constitution when it required doctors performing abortions to
have admitting privileges at nearby hospitals.
Sotomayor Ginsburg Kagan Breyer
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LIBERAL BLOC
Sotomayor Ginsburg Kagan Breyer
CONSERVATIVE BLOC
Roberts
Where the public stands
Statesʼ requiring abortion
providers to have admitting
privileges does violate womenʼs
constitutional rights
Statesʼ requiring abortion
providers to have admitting
privileges does not violate
womenʼs constitutional rights
All 57% 43%
Democrats 73% 28%
Independents 56% 45%
Republicans 39% 61%
Question wording: Louisiana passed a law requiring abortion providers to be able to send patients
to nearby hospitals, a practice known as “admitting privileges.” This law would mean that all
abortion providers in the state except for one would be forced to close. Some people believe that
Louisianaʼs law violates womenʼs constitutional rights. Other people believe that the law does not
violate womenʼs constitutional rights. What do you think? | Source: SCOTUSPoll
5-4
DECIDED
Independent Agencies
In Seila Law LLC v. Consumer Financial Protection Bureau, the court ruled
Kavanaugh Alito Gorsuch Thomas
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JUNE 29 that the president may fire the director of the Consumer Financial
Protection Bureau without cause.
LIBERAL BLOC CONSERVATIVE BLOC
Roberts Kavanaugh Alito Gorsuch Thomas
Where the public stands
The structure of the C.F.P.B. is
appropriate
The C.F.P.B. has too much
independent power
All 56% 44%
Democrats 77% 23%
Independents 56% 44%
Republicans 30% 70%
Question wording: In 2010, Congress established the Consumer Financial Protection Bureau
(C.F.P.B.) as an independent consumer protection agency. In doing so, Congress severely limited
the presidentʼs ability to remove the agencyʼs director. Some people think the structure of the
C.F.P.B. is appropriate. Others disagree and believe that this gave the C.F.P.B. too much
independent power, since it is very difficult for the president to remove the agencyʼs director. What
do you think? | Source: SCOTUSPoll
Immigration
In Department of Homeland Security v. Regents of the University of
Sotomayor Ginsburg Kagan Breyer
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5-4DECIDED
JUNE 18
California, the court ruled that the Trump administration could not
immediately shut down DACA, a program that shields about 700,000
young immigrants known as Dreamers from deportation and allows them to
work.
LIBERAL BLOC
Sotomayor Ginsburg Kagan Breyer
CONSERVATIVE BLOC
Roberts
Where the public stands
The DACA program should
remain
The DACA program should be
ended
All 61% 39%
Democrats 85% 15%
Independents 61% 39%
Republicans 30% 70%
Question wording: Deferred Action for Childhood Arrivals (DACA) was created by President Obama
to protect undocumented immigrants who have lived in the U.S. since childhood from deportation.
President Trump wants the Department of Homeland Security to end DACA. What do you think? |
Source: SCOTUSPoll
Gay and Transgender Rights
Kavanaugh Alito Gorsuch Thomas
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6-3DECIDED
JUNE 15
The court ruled that the Civil Rights Act of 1964 protects gay and
transgender workers from workplace discrimination. The court considered
two cases concerning gay rights, Bostock v. Clayton and Altitude Express v.
Zarda, and one case concerning transgender rights, R.G. & G.R. Harris
Funeral Homes v. Equal Employment Opportunity Commission.
LIBERAL BLOC
Sotomayor Ginsburg Kagan Breyer
CONSERVATIVE BLOC
Roberts Gorsuch
Where the public stands
It should be illegal for
employees to be fired based on
sexual orientation
It should be legal for employers
to fire people based on sexual
orientation
All 83% 17%
Democrats 90% 11%
Independents 84% 17%
Republicans 74% 26%
Question wording: Some people believe that it should be illegal for employees to be fired based on
their sexual orientation because it is discrimination on the basis of sex. Other people think that it
should be legal because it is not discrimination on the basis of sex. What do you think? | Source:
SCOTUSPoll
It should be illegal for employees
to be fired for being transgender
It should be legal for employees
to be fired for being transgender
Kavanaugh Alito Thomas
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All 79% 21%
Democrats 86% 14%
Independents 79% 21%
Republicans 69% 31%
Question wording: Some people believe that it should be illegal for employees to be fired for being
transgender because it is discrimination on the basis of sex. Other people think that it should be
legal because it is not discrimination on the basis of sex. What do you think? | Source: SCOTUSPoll
6-3DECIDED
APRIL 20
Juries
In Ramos v. Louisiana, the court ruled that the Constitution requires
unanimous jury verdicts to convict defendants of serious crimes.
LIBERAL BLOC
Sotomayor Ginsburg Breyer
CONSERVATIVE BLOC
Kavanaugh Gorsuch Thomas
9-0
DECIDED
Public Corruption
In Kelly v. United States, the court overturned the convictions of two
associates of Chris Christie, the former governor of New Jersey, in the
Kagan Roberts Alito
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MAY 7 Bridgegate scandal.
LIBERAL BLOC
Sotomayor Ginsburg Kagan Breyer
CONSERVATIVE BLOC
Roberts Kavanaugh Alito Gorsuch Thomas
Polling data comes from the SCOTUSPoll project by Stephen Jessee, University of Texas at
Austin; Neil Malhotra, Stanford Graduate School of Business; and Maya Sen, Harvard Kennedy
School. It is based on a survey conducted online by YouGov from April 29 to May 12 using a
representative sample of 2,000 American adults. The survey has a margin of error of 2.2 pct.
pts.
Correction: July 9, 2020
An earlier version of this graphic misstated how two of the justices voted in two cases: Trump v.
Mazars and Trump v. Vance. In both rulings, it was Justice Gorsuch who voted with the majority
and Justice Alito who dissented, not the other way around.
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A Blockbuster Turn to the Center Led
by a Chief Justice at Center Stage
Doling out victories to both sides, the court led by Chief Justice John Roberts seemed to
strive to avoid charges of partisanship.
Chief Justice John G. Roberts Jr. dissented only twice the entire term. Credit...T.J. Kirkpatrick for The New York
Times
Adam Liptak, The New York Times National Edition, July 11, 2020, A13.
WASHINGTON — In an era of stark partisan polarization, Chief Justice John G. Roberts
Jr. steered the Supreme Court toward the middle, doling out victories to both left and
right in the most consequential term in recent memory.
The term, which ended Thursday, included rulings that will be taught to law students for
generations — on presidential power and on the rights of gay and transgender workers.
The court turned back an effort to narrow abortion rights, and it protected young
immigrants known as Dreamers.
It expanded the role of religion in public life, and it cut back on the power of
independent agencies. It took steps to prevent chaos when the Electoral College meets
after the presidential election. And it handed Native Americans their biggest legal
victory in decades.
A term that included just two or three such decisions would stand out. The term that
just ended was a buffet of blockbusters.
It was also the term in which Chief Justice Roberts emerged as the member of the court
at its ideological center, his vote the crucial one in closely divided cases, a role no chief
justice has played since 1937. He was in the majority in all but one of the term’s 5-to-4
or 5-to-3 decisions.
But the chief justice was not alone in guiding the court toward the center: The
percentage of 5-to-4 rulings dropped to a little more than 20, down from an average of
30 in the previous two terms.
Several major decisions were decided by 7-to-2 votes, including ones on subpoenas for
President Trump’s financial records and the rights of religious employers. In some ways,
the most prominent losers this term were the members of the court on its far right
(Justices Clarence Thomas and Samuel A. Alito Jr.) and far left (Justices Ruth Bader
Ginsburg and Sonia Sotomayor). They were the least likely to be in the majority in
divided cases.
Chief Justice Roberts, 65, is a work in progress.
“This is the term where those of us who thought we understood John Roberts came to
understand that we didn’t,” said Irv Gornstein, the executive director of Georgetown’s
Supreme Court Institute. “I know some are already spinning out theories to explain how
his votes fit into a coherent judicial philosophy. But as it was happening, it was one
shock after another.”
In a two-week stretch last month, for instance, Chief Justice Roberts voted with the
court’s four-member liberal wing in cases on abortion, the Dreamers and job protections
for L.G.B.T.Q. workers.
The trend is clear, said Lee Epstein, a law professor and political scientist at Washington
University in St. Louis. “He is drifting left at a statistically significant rate — and at a
rate roughly resembling Souter’s liberal turn in the 1990s,” she said.
Justice David H. Souter, who was appointed in 1990 by President George Bush, soon
emerged over his two decades on the court as a leading member of its liberal wing, much
to the distress of his conservative sponsors.
Chief Justice Roberts dissented only twice in the entire term, in cases on unanimous
juries and Native American jurisdiction over eastern Oklahoma. Put another way, he
was in the majority in divided decisions at a higher rate than any chief justice since at
least 1953. That and other conclusions in this article are drawn from data compiled by
Professor Epstein, Andrew D. Martin of Washington University and Kevin Quinn of the
University of Michigan.
The chief justice was in the majority in divided cases 94 percent of the time, trailed by
Mr. Trump’s two appointees: Justice Brett M. Kavanaugh, who voted with the majority
89 percent of the time, and Justice Neil M. Gorsuch, who voted with it 83 percent of the
time. Together, Professor Epstein said, those three justices make up the “soft middle” of
the court.
In divided cases, the chief justice voted with Justice Kavanaugh 89 percent of the time,
and Justice Gorsuch 77 percent.
Other rates of agreement were more striking. Chief Justice Roberts voted with Justice
Elena Kagan, a member of the court’s liberal wing, 69 percent of the time. By contrast,
he voted with Justice Alito 63 percent of the time — the same rate as with Justice
Stephen G. Breyer, another liberal. And the chief justice voted with Justice Thomas just
54 percent of the time.
Over all, Chief Justice Roberts’s rate of agreement with Democratic appointees was 61
percent, up from 44 percent in the previous term.
Mr. Trump has had a bad run at the court over his time in office, becoming the first
president since Franklin D. Roosevelt whose administration lost more cases than it won.
The result was that a court dominated by five Republican appointees, including two
named by Mr. Trump, disappointed conservatives at a notable rate. “This term
spectacularly frustrated the conservative ambition to transform the Supreme Court into
the G.O.P.’s lap dog,” said Justin Driver, a law professor at Yale.
The court did its work in the middle of a pandemic, hearing arguments by telephone and
allowing live audio coverage, both firsts. It typically ends its term in late June, but this
year it issued its last decisions in July, which has not happened since 1996.
The court postponed arguments in 10 cases to the term that starts in October, and it
decided just 53 argued cases with signed opinions, the smallest number since the 1860s.
During the Spanish flu epidemic in the term that started in 1918, the court also
postponed arguments but nonetheless decided 163 cases, or more than three times as
many as the current court.
It was hardly a uniformly liberal term. Eight of the 12 closely divided cases featured the
classic lineup, with the five Republican appointees in the majority. In two, on abortion
and immigration, Chief Justice Roberts voted with the four Democratic appointees. In
one, on Native American rights, Justice Gorsuch voted with them. (In the last 5-to-4
decision, in a copyright case, the alliances were scrambled.)
Justice Gorsuch drew fire from the right for his majority opinion in Bostock v. Clayton
County, Ga., ruling that a landmark federal civil rights law protects L.G.B.T.Q. workers.
The court’s four-member liberal wing and the chief justice joined his opinion in the 6-to-
3 decision.
The retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority
opinions in all four of the earlier landmark gay rights decisions, had made that outcome
uncertain.
“With Justice Kennedy’s departure, some court watchers justifiably feared that the
movement toward accepting gay equality would stall, or perhaps even be reversed,”
Professor Driver said. “Instead, in a historic decision, the court redoubled its egalitarian
efforts and even afforded protection to the trans community. Until quite recently, such a
decision would have been unfathomable.”
Justice Gorsuch’s opinion employed textualism, the mode of statutory interpretation
that looks to the words of the law under consideration rather than the intentions of the
lawmakers who voted for it.
Professor Gornstein said the reaction from the right was telling.
“Rather than celebrating the opinion as the high-water mark for textualism,” he said,
“the conservative reaction has been to excoriate Justice Gorsuch as a betrayer of the
conservative cause, leading to this question: Do conservatives want a justice who will
follow the judicial method favored by conservatives, or do they want a justice who uses
all the tools available to reach conservative policy results?”
Sarah Harrington, a Supreme Court specialist with Goldstein & Russell, said Chief
Justice Roberts has exerted a moderating influence on colleagues inclined to lurch right.
“I think we can expect that he will oversee a general shift toward more conservative
rulings over time,” she said, “but he continues to pump the brake on that shift, adhering
for now to recent precedent and requiring the federal government to follow
administrative-law rules in order to implement its conservative policy agenda.”
An example of adherence to recent precedent was the chief justice’s vote in the 5-to-4
decision to strike down a Louisiana law on the ground that the court had invalidated the
identical law from Texas just four years before.
An example of requiring the government to follow administrative law principles was
Chief Justice Roberts’s majority opinion in a 5-to-4 decision rejecting the Trump
administration’s justifications for trying to shut down a program protecting the
Dreamers.
The court was exceptionally active in cases involving religious institutions, siding with
them three times in a row. The court ruled that state programs supporting private
schools must include religious ones, that the Trump administration could allow
employers with religious objections to deny contraception coverage to female workers
and that employment discrimination laws do not apply to many teachers at religious
schools.
Not all of the court’s actions are reflected in data on argued cases. The justices have also
ruled on a series of emergency applications, some prompted by the pandemic. Chief
Justice Roberts joined the court’s four liberals, for instance, in a 5-to-4 order rejecting a
California church’s challenge to the state’s shutdown policies.
But he twice joined his conservative colleagues in similar orders making it harder to vote
in Wisconsin and Texas. “When it comes to state efforts to suppress the vote,” Professor
Gornstein said, “the chief continues to vote in lock step with the rest of the right.”
Over all, though, Professor Epstein said, the court has provided a welcome contrast to
the partisan turmoil around the nation.
“This term, most justices — and Roberts, in particular — modeled centrist, nonpartisan
behavior for the country,” she said. “The data show a decline in 5-4 decisions, more
agreement across party lines and a roughly 50-50 split in liberal and conservative
decisions. The big cases, too, went ‘one for you, one for me,’ which may help bolster the
court’s legitimacy.”
Alicia Parlapiano contributed reporting.
A Conservative Court and Trump’s
Own Appointees Declare Their
Independence
The Supreme Court’s dismissal of President Trump’s claims of immunity was a
reminder that institutional prerogatives still matter in Washington, even in a time of
extreme partisanship.
On Thursday, the Supreme Court categorically dismissed President Trump’s claim to “absolute immunity” against
investigators seeking his tax returns .Credit...Samuel Corum for The New York Times
Peter Baker, The New York Times Online Edition. Published July 9, 2020;
Updated July 10, 2020.
WASHINGTON — At his campaign rally last month in Tulsa, Okla., President
Trump ranked his Supreme Court appointments among his biggest achievements. “Two
great Supreme Court judges!” he boasted. “So, we have two justices of the Supreme
Court, Justice Gorsuch, Justice Kavanaugh, they’re great. They are — they’re great.”
He might not have felt so warmly on Thursday after Justices Neil M. Gorsuch and Brett
M. Kavanaugh categorically dismissed his claim to “absolute immunity” from
investigators seeking his tax returns. In a pair of far-reaching rulings, Mr. Trump’s two
appointees joined a unanimous conclusion that the president went too far by
pronouncing himself exempt from legal scrutiny.
The forceful decisions represented a declaration of independence not only by Mr.
Trump’s own justices but by the Supreme Court as an institution, asserting itself as an
equal branch of government in the Trump era. No matter how often Mr. Trump insists
that he has complete authority in this instance or that, the justices made clear on
Thursday that there were in fact limits, just as they did in landmark executive power
cases involving Presidents Richard M. Nixon and Bill Clinton.
That a conservative court including two of his own appointees would so decisively slap
down a Republican president’s expansive claim of constitutional power served as a
reminder that institutional prerogatives still matter in Washington, even in a time of
extreme partisanship. The court remains broadly conservative on important issues like
religious freedom, but in cases on gay rights, immigration, abortion and now executive
power, it has defied the president repeatedly in recent weeks.
By forging a unanimous consensus on Mr. Trump’s immunity claim, Chief Justice John
G. Roberts Jr. seemed to underline the point he made two years ago when he rebuked
Mr. Trump by saying there were no “Obama judges or Trump judges.” Even on the
overall votes on the two cases, both decided 7 to 2, he brought together four liberals and
three conservatives, echoing the firm lines drawn by the court against other
overreaching presidents.
“The truth is, President Trump’s arguments for immunity were so sweeping that it was
almost impossible for any justice to really embrace them,” said Tom Goldstein, a
prominent Supreme Court litigator and the publisher of Scotusblog, a website that
tracks the court.
Still, the justices cut Mr. Trump a break by sending the two cases back to lower courts to
consider the merits of the subpoenas according to standards set by the court, additional
litigation that will most likely keep his tax returns shielded from public view through the
general election on Nov. 3.
Many legal experts predicted that Mr. Trump ultimately could still stave off
congressional demands for his returns because the justices in Trump v. Mazars USA
seemed dubious about their legitimacy and put the onus on the House to justify its need
for the documents. But experts said Mr. Trump was likely to eventually lose the effort to
block a New York prosecutor because the justices in Trump v. Vance put the burden on
the president to come up with a compelling rationale for why the returns should not be
turned over.
The president lashed out on Twitter minutes after the court’s rulings, once again
presenting himself as a victim. “This is all a political prosecution,” Mr. Trump wrote. “I
won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically
corrupt New York. Not fair to this Presidency or Administration!”
“Courts in the past have given ‘broad deference,’” he added. “BUT NOT ME!”
In fact, Mr. Trump was the one seeking special treatment. Every president since Jimmy
Carter has voluntarily released his tax returns, but Mr. Trump has refused since 2015
when he began running for the White House and said he was being audited. While he
promised to make them public once the audit was over, he never has.
Five years later, the White House said on Thursday that he was still being audited but
did not identify which years of tax returns were being reviewed. Once in office, every
sitting president’s returns are audited automatically, so if that remains his standard, he
presumably will never release them voluntarily.
Similarly, Mr. Trump was seeking court protection beyond that enjoyed by any other
president, claiming “absolute immunity.”
That flew in the face of the principles set by the court when Mr. Nixon in 1974 lost his
bid to shield tape recordings that implicated him in the Watergate cover-up. In that
case, U.S. v. Nixon, the court ruled against the president 8 to 0, including three of his
appointees, Chief Justice Warren E. Burger and Justices Harry A. Blackmun and Lewis
F. Powell Jr. A fourth appointee, Justice William H. Rehnquist, recused himself because
he had served in Mr. Nixon’s Justice Department.
Twenty-three years later, the court rebuffed Mr. Clinton’s immunity claim while in office
against a sexual harassment lawsuit brought by Paula Jones, a former Arkansas state
worker. Both of Mr. Clinton’s appointees, Justices Ruth Bader Ginsburg and Stephen G.
Breyer, rejected his position in the 9-to-0 decision in that case, Clinton v. Jones.
Like his predecessors, Mr. Trump was unhappy with the rulings, although aides sought
to calm him by assuring him that he could continue fighting in lower courts. But he
expressed deep anger at Justices Gorsuch and Kavanaugh, seeing their votes as a
betrayal, according to a person familiar with his reaction.
But the two justices only followed in the footsteps of their predecessors by rejecting the
president who put them on the court. While each of them has generally sided with Mr.
Trump since taking office, in this case they drew a line. Neither is personally close to Mr.
Trump nor is either thought to be much of an admirer of the president, so some saw the
decision as a way to distance themselves.
“My guess is their feeling about him is, ‘We intend to be on this court long after he is a
bad memory, and if his administration is about to come crashing down, we might as well
have been people who weren’t willing to completely blow up the Constitution for him,’”
said Richard Primus, a constitutional scholar at the University of Michigan Law School,
adding that they would do so only if they also saw it as “the right legal answer.”
Mike Davis, who as a congressional aide helped confirm both of Mr. Trump’s justices
and now leads the Article III Project to support his other judicial nominees, said the
president should not be too disappointed in his appointees.
“I would say, ‘Mr. President, you appointed judges, not puppets, and they’re going to
follow the law and it doesn’t matter who appointed them,’” Mr. Davis said. “Despite
perceived setbacks here and there, President Trump’s transformation of the federal
judiciary is his biggest accomplishment.”
Kayleigh McEnany, the White House press secretary, said she did not ask Mr. Trump
specifically for his reaction to the position taken by Justices Gorsuch and Kavanaugh,
but insisted that “his justices did not rule against him.”
Like the president’s other aides, she focused on the fact that the court sent the cases
back to lower courts for further proceedings with standards for Mr. Trump to meet if he
wants to avoid subpoenas, and she cited cautions in the ruling against fishing
expeditions. “That language made it pretty clear that this was a win for the president,”
Ms. McEnany said. “The justices did not rule against him.”
In a concurrence in the New York case, joined by Justice Gorsuch, Justice Kavanaugh
flatly dismissed Mr. Trump’s constitutional argument. “In our system of government, as
this court has often stated, no one is above the law,” he wrote. “That principle applies, of
course, to a president.”
But he added that “a court may not proceed against a president as it would against an
ordinary litigant,” and so state prosecutors must still justify their demands for
documents like his tax returns. He said he would apply the same standard articulated in
the Nixon case, that prosecutors have to provide a “demonstrated, specific need” for the
information, a formulation that Chief Justice Roberts did not adopt in his majority
opinion.
Justice Kavanaugh’s position perhaps should not come as much of a surprise. While
known as an advocate of executive authority, he expressed reverence for the Nixon
ruling during his confirmation hearings in 2018, calling it “one of the greatest moments
in American judicial history.”
“I would say all the people who opposed Kavanaugh on the grounds that he somehow
believed in an imperial presidency and thought the president is above the law ought to
reconsider and apologize for how incorrectly they read his past,” said Carrie Campbell
Severino, the president of the Judicial Crisis Network, a group that supports
conservative judicial nominees. “This is totally consistent with what he’s said before.”
Liberal activists, however, were hardly rushing to give him much credit. “The claim of
absolute immunity was too far out there to endorse with a straight face,” said Brian
Fallon, the executive director of Demand Justice, a progressive group fighting Mr.
Trump’s judicial nominations. “It is hardly reassurance about the types of justices that
Kavanaugh and Gorsuch are.”
Justices Gorsuch and Kavanaugh have been supportive of the Trump administration,
but not across the board. Justice Kavanaugh has voted for the position espoused by the
administration 67.6 percent of the time, making him the second-most reliable ally
behind Justice Samuel A. Alito Jr., according to figures compiled by Adam Feldman, a
statistician for Scotusblog. Justice Gorsuch has agreed with the administration’s point of
view 56.1 percent of the time, making him fifth, behind Justice Clarence Thomas and
Chief Justice Roberts.
Justice Gorsuch has broken with Mr. Trump other times in recent weeks. He wrote the
majority opinion last month establishing that federal civil rights law bars workplace
discrimination against L.G.B.T. workers, and he wrote another majority opinion
released on Thursday ruling that much of eastern Oklahoma falls within an Indian
reservation.
Mr. Trump has attacked Chief Justice Roberts for his votes against the president’s
positions in recent weeks, but not his own appointees up until now. Ms. McEnany said
some of the rulings of recent weeks bolster the president’s determination to remake the
judiciary. “We need more conservative justices on the court,” she said. “That’s been the
big takeaway.”
Maggie Haberman contributed reporting from New York.
A Chief Justice With the Power Of a
Swing Vote
Chief Justice Roberts has replaced Justice Anthony M. Kennedy as the member of the
Supreme Court at its ideological center, and his vote is now the crucial one in closely
divided cases.
Chief Justice John G. Roberts Jr. in February before the president’s State of the Union address at the
Capitol. Credit...Pool photo by Leah Millis
Adam Liptak, The New York Times National Edition, July 1, 2020, A1, A16.
WASHINGTON — In a series of stunning decisions over the past two weeks, Chief
Justice John G. Roberts Jr. has voted to expand L.G.B.T.Q. rights, protect the young
immigrants known as Dreamers and strike down a Louisiana abortion law. In all three
decisions, he voted with the court’s four-member liberal wing.
On Tuesday, he joined his usual conservative allies in a 5-to-4 ruling that bolstered
religious schools.
The decisions may be hard to reconcile as a matter of brute politics. But they
underscored the larger truth about Chief Justice Roberts: 15 years into his tenure, he
now wields a level of influence that has sent experts hunting for historical comparisons.
“Roberts is not only the most powerful player on the court,” said Lee Epstein, a law
professor and political scientist at Washington University in St. Louis. “He’s also the
most powerful chief justice since at least 1937.”
An incrementalist and an institutionalist, the chief justice generally nudges the court to
the right in small steps, with one eye on its prestige and legitimacy. He is impatient with
legal shortcuts and, at only 65, can well afford to play the long game.
Taking the place of Justice Anthony M. Kennedy, who retired in 2018, at the court’s
ideological center, Chief Justice Roberts’s vote is now the crucial one in closely divided
cases. To be both the chief justice and the swing vote confers extraordinary power.
His pivotal role on the court could be fleeting. Were President Trump able to appoint a
replacement for Justice Ruth Bader Ginsburg, who is 87, or Justice Stephen G. Breyer,
who is 81, the chief justice would almost certainly be outflanked by a conservative
majority on his right.
A President Joseph R. Biden Jr., on the other hand, may have fewer opportunities to
reshape the court in the short term. Replacing Justices Ginsburg or Breyer with another
liberal would not alter the court’s ideological balance or the chief justice’s influence.
And that would mean Chief Justice Roberts would continue to assign the majority
opinion when he is in the majority, which these days is almost always. He uses that
power strategically, picking colleagues likely to write broadly or narrowly and saving
important decisions for himself.
In his first 14 terms, he was in the majority about 88 percent of the time. So far this
term, that number has shot up to 98 percent, Professor Epstein found. “Even more
stunning,” she said, “is that Roberts voted with the majority in 97 percent of the nonunanimous
decisions, compared to his average of 80 percent. This is the best showing
by a chief justice since at least the 1953 term.”
But this may be the most striking statistic: He has been in the majority in every one of
the 11 rulings decided by 5-to-4 or 5-to-3 votes so far this term. No chief justice has been
in the majority in every closely divided case over an entire term since Chief Justice
Charles Evans Hughes in the term that ended in 1938 — and that was in only four cases.
I
Chief Justice Charles Evans Hughes in 1933. He faced clashes with President
Franklin D. Roosevelt. Credit...Associated Press
Chief Justice Roberts has spoken admiringly of Chief Justice Hughes and his deft
management of a clash with President Franklin D. Roosevelt. It arose in 1937, when
Roosevelt, unhappy with Supreme Court decisions striking down his New Deal
programs, announced a plan to add justices to the court.
“One of the greatest crises facing the Supreme Court since Marbury v. Madison was
F.D.R.’s court-packing plan,” Chief Justice Roberts said in 2015 at New York University,
“and it fell to Hughes to guide a very unpopular Supreme Court through that high-noon
showdown against America’s most popular president since George Washington.”
“There are things to learn from it,” Chief Justice Roberts said, and he has seemed to
apply those lessons to his relationship with Mr. Trump, who has attacked the very idea
of judicial independence.
Chief Justice Roberts was appointed by President George W. Bush in 2005, and he was,
back then, thought to be a reliable product of the conservative legal movement. Over the
years, he occasionally disappointed his supporters and allies, notably in twice voting
to sustain the Affordable Care Act and in rejecting the Trump administration’s efforts to
add a question on citizenship to the census.
But those disappointments do not compare to the fury that followed the recent
decisions. Conservatives said the chief justice has abandoned principle in an effort to
protect the court’s reputation — and his own — from accusations that it is a political
institution.
Chief Justice Roberts gave a talk on Chief Justice Hughes in 2015 at N.Y.U.Credit. .Richard Perry/The New
York Times
“Americans hoping for justice for women and unborn babies were let down again today
by John Roberts,” said Senator Tom Cotton, Republican of Arkansas. “The chief justice
may believe that he’s protecting the institutional integrity of the court, but in reality, his
politicized decision-making only undermines it.”
Conservatives said they suspected the chief justice was acting at least partly based on a
distaste for Mr. Trump, who has for years lashed out at federal judges who rule against
him and his policies. They cited the chief justice’s majority opinions rejecting the
administration’s rationales in the cases on the census and the Dreamers.
A pair of cases concerning Mr. Trump’s efforts to block disclosure of his financial
records are among those that remain to be decided by the court this term. They will test
Chief Justice Roberts’s leadership, and his votes in them will add important details to
the portrait of him that has emerged thus far.
Chief Justice Roberts has tangled with the president before, issuing an extraordinary
statement in 2018 after Mr. Trump criticized a ruling from an “Obama judge.”
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the
chief justice said. “What we have is an extraordinary group of dedicated judges doing
their level best to do equal right to those appearing before them. That independent
judiciary is something we should all be thankful for.”
In other settings, the chief justice has insisted that the justices do not act as partisans.
“We don’t work as Democrats or Republicans,” he said in 2016.
Richard J. Lazarus, a law professor at Harvard, said Monday’s abortion decision
vindicated Chief Justice Roberts’s statements.
“The chief is sending a broader message to both parties, and this time in this case it is
the Republicans who take the hit,” Professor Lazarus said. “But the message would be
the same if it were the Democrats and their favored position had lost.”
The message was this, Professor Lazarus said: “You cannot expect us to behave like
partisan legislators.”
The abortion case concerned a Louisiana law that was essentially identical to one from
Texas that the court had struck down just four years ago, before Mr. Trump appointed
two new justices. In dissent in 2016, Chief Justice Roberts had voted to uphold the
Texas law.
Professor Lazarus said he suspected the chief justice was offended by the idea that a
change in the composition of the court should warrant a different outcome in what was,
at bottom, the identical case.
This term, Professor Epstein found, Chief Justice Roberts has voted with liberal and
conservative justices at roughly equivalent rates.
“In a day and age of ‘fear and loathing’ between opposing partisans,” she said, “this is
pretty extraordinary.”
Chief Justice Roberts was appointed in 2005 by President George W. Bush. Credit Doug Mills/The New
York Times
Mike Davis, a former Senate Judiciary Committee counsel who is now head of the
conservative Article III Project, said he was puzzled by Chief Justice Roberts’s votes.
“The chief rules on these cases in such a way where he believes he is protecting the
integrity of the Supreme Court,” Mr. Davis said. “And only the chief understands the
method to this madness.”
But he added that the rulings would motivate conservative voters in the coming election
to back Mr. Trump and Republican Senate candidates in hopes of cementing a more
reliable conservative majority on the court.
“Over the next four years, the president of the United States could appoint four or more
justices to the Supreme Court,” Mr. Davis said. “And that is why it is so critically
important that conservatives turn out and vote.”
Professor Lazarus said that sort of thinking missed a distinction between politics and
law.
“The chief’s clear message is that is not how justices do their work,” he said. “It is a shot
across the bow at presidential candidates who campaign with lists of nominees based on
the assumption that, if confirmed, they will of course necessarily vote based on the
preferences of the majority who supported that candidate.”
Carl Hulse contributed reporting.