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President Trump has plenty of nemeses. Who would have thought a conservative Supreme Court Justice would be one of the biggest thorns in his side — in an election year?
The court on Thursday rejected the president’s claim that he cannot be investigated while in office, paving the way for a New York prosecutor’s subpoena of Mr. Trump’s taxes — records he’s withheld from the public for years.
The author of the 7-to-2 opinion? Chief Justice John Roberts, a conservative appointed by a Republican president.
“No citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” he wrote.
The outcome is not all bad for Mr. Trump — the tax records most likely won’t be seen by the public before the election in November.
But this isn’t the first time the chief justice has broken with the president on significant cases.
Over the past four weeks, he has stopped the Trump administration from moving forward with plans to end a program protecting undocumented immigrants brought to the country as children. He helped deliver a landmark civil rights victory for gay and transgender workers. And he joined with liberal justices to provide a crucial fifth vote on a major abortion case.
Now, Chief Justice Roberts is no liberal. Appointed by President George W. Bush in 2005, he came up through the ranks of the conservative legal moment. He’s largely sided with conservatives in key rulings, shifting the court to the right.
But he is also an institutionalist, legal scholars say, one who’s worried about the court’s independence and credibility in a deeply polarized political moment.
“The court’s role as an institution in American government has come under increased pressure,” said Leah Litman, a constitutional law professor at the University of Michigan who clerked for Justice Anthony Kennedy. “If it looks very political and partisan, it might not be long for this world in its current form.”
While public confidence in the court remains high, the bitter political fight over Brett Kavanaugh’s nomination dealt a blow to how some voters view the third branch of American government.
After Justice Kavanaugh’s confirmation, Chief Justice Roberts, who chooses his public words carefully, felt compelled to address how partisan dysfunction in Congress had transformed the judiciary into a kind of political spoils system.
“We do not sit on opposite sides of an aisle,” he said in October 2018 in remarks at the University of Minnesota. “We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation. And I want to assure all of you that we will continue to do that to the best of our abilities whether times are calm or contentious.”
Liberals and some legal scholars say Mr. Roberts is responding, at least in part, to an emboldened conservative legal movement that is eager to push the bounds of legal precedent.
They point to the Trump tax case, in which the president’s lawyer argued that Mr. Trump had immunity beyond what past presidents had asserted, as an example. At one point, his lawyers even argued that Mr. Trump could, as he once famously mused, shoot someone on Fifth Avenue and be protected from investigation.
As the partisan battles over the judiciary grow ever more bitter, some Democrats are embracing their own once-fringe proposals, like expanding the number of justices on the court or impeaching Justice Kavanaugh, that would amount to an extraordinary bucking of constitutional and political norms.
Some conservatives believe Chief Justice Roberts’s rulings are driven by more personal motivations: a distaste for Mr. Trump and a desire to protect his own reputation. But even as he infuriates Republicans with his recent rulings, he may be helping them politically.
Already, the White House and its conservative allies are trying to capitalize on the anger at the chief justice to energize their voters in November. At the same time, the rulings give Republicans running in battleground states some cover on issues like immigration and L.G.B.T.Q. rights where the party’s positions are out of step with public opinion.
“The chief justice was, in many ways, handing Republican politicians a major electoral gift,” Professor Litman said. “They don’t have to defend and live with decisions that would be unpopular.”
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From Opinion: The court’s role in an era of dysfunction
Rarely has the Supreme Court released so many decisions this far into July — or, it seems, weighed in on so many divisive issues. In this term, the court has ruled on the DACA program protecting young undocumented immigrants; the constitutionality of the Consumer Financial Protection Bureau’s structure; the Electoral College and “faithless electors”; abortion law in Louisiana; and religious liberty as understood through the “ministerial exception.”
Chief Justice John Roberts “has sided with the Supreme Court’s liberal justices on some of the biggest cases of the term, like decisions to invalidate the Trump administration’s effort to rescind the DACA program and Louisiana’s abortion-provider regulations,” writes Jonathan Adler, a law professor. But in other big cases, he has stuck with the conservatives.
The chief justice, Professor Adler says, “is a conservative justice, but more than anything else, he is a judicial minimalist who seeks to avoid sweeping decisions with disruptive effects.”
Michael McConnell, a former federal appeals court judge and professor, puts Chief Justice Roberts’s institutionalist role in context. With a largely dysfunctional Congress, he writes, “the court seems to reach results that very likely would carry the day in Congress on many of these issues, if Republicans and Democrats were inclined to talk to one another and compromise.” Congress’s failures have left the court to make decisions that have historically (and constitutionally) been negotiated in Congress.
As the columnist Ross Douthat wrote in late June: “We may officially have three branches of government, but Americans seem to accept that it’s more like 2.25: A presidency that acts unilaterally whenever possible, a high court that checks the White House and settles culture wars, and a Congress that occasionally bestirs itself to pass a budget.”
— Adam Rubenstein
Confused why quarantine days go by so slowly — or so fast? This fascinating primer on the psychology of time could help explain.
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