Chief Justice Roger Taney

Chief Justice John Roberts At A Crossroads

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Chief Justice John Roberts is only the 17th person to be Chief Justice.

He has been Chief Justice for 19 years by September, and will be the fourth longest serving Chief Justice at that point, already surpassing the average tenure for a Chief Justice, with the major exceptions of John Marshall (1801-1835) and Roger Taney (1836-1864)), and also Melville Weston Fuller (1888-1910).

Roberts worries, rightfully, about the reputation of the Supreme Court, as it is named after the people who hold the position of Chief Justice.

While a definite conservative, Roberts has tried to promote a rational center on the Court, but that has become much more difficult with the extreme rightward swing of the Court since Donald Trump made three appointments in his one term of office.

The feeling is that Roberts has lost any sense of control or ability to influence his colleagues.

There clearly are major splits on the Court, and Roberts has the difficult job of showing he can lead, or allowing Clarence Thomas and Samuel Alito to dominate the Court.

It is hoped that Roberts, quietly, behind the scenes, has convinced the Trump appointees to tame the influence of Thomas and Alito, as otherwise, the reputation of the Court and his own historical reputation will lie in tatters.

This will be demonstrated when the Court finally makes its fateful decision this week on Presidential immunity, and the majority of the Court desperately needs to get this case right, or else, the American experiment in democracy will be in long term crisis!

The Supreme Court Reputation Reaching An All Time Low

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The US Supreme Court is in a crisis, as its reputation in public opinion polls, and among Supreme Court “watchers”, is reaching an all time low, not matched since the late 1920s and early 1930s.

The Court has never been as right wing in substance as it is now, since a century ago, and even going further back to the late 19th century Gilded Age era.

The Supreme Court’s reputation was glowing in the time of the Warren Court (1953-1969) and even moving forward to the Burger Court (1969-1986), and still having an image of balance in the era of the Rehnquist Court (1986-2005).

This was due to the reality that many Republican appointees to the Court, including the following, avoided hardline conservativism:

Eisenhower–Earl Warren, William Brennan
Nixon–Warren Burger, Harry Blackmun
Ford–John Paul Stevens
Reagan–Sandra Day O’Connor, Anthony Kennedy
HW Bush–David Souter

These eight Justices made a massive difference in enunication of Supreme Court opinions.

Sadly, George H W Bush’s appointment of Clarence Thomas, and George W. Bush’s selection of Samuel Alito, veered the Court far to the right, and Donald Trump’s three appointments—Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett—have continued that trend.

The fact that Thomas and Kavanaugh have been connected to accusations of sexual harassment, and that Alito, Gorsuch, Kavanaugh, and Barrett were chosen by Presidents who lost the national popular vote, and that Gorsuch took a seat that was meant for Barack Obama’s nominee, Merrick Garland, and that Barrett was confirmed for the Court less than two weeks before the national election—only adds to the fury and disgust felt about the Supreme Court!

This has, reportedly, disturbed Chief Justice John Roberts (2005- ), whose historical reputation is being damaged, as he has moved, personally, from being conservative to attempts to create a moderate balance on the Court. Sadly, it is not working, so there are some rumors that he might retire from the Court after 17 years as its leader, as that is about the norm for most of the 17 Chief Justices in Amerian history, with the exception of John Marshall (1801-1835) and his successor, Roger Taney (1836-1864).

That would be a major step forward, to retire, and allow Joe Biden to pick a Chief Justice, which has not happened for a Democratic President since Harry Truman in 1946!

US V Nixon; Clinton V Jones; And Now Trump Lawsuit Against January 6 Committee Appeal To Supreme Court!

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The Supreme Court has come out with two decisions in the past half century that made it clear of the limits of Presidential power!

In 1974, in US V Nixon, the Supreme Court, including three appointees of President Richard Nixon, unanimously by an 8-0 vote, declared that Nixon had to hand over the Watergate tapes to the Special Prosecutor, leading to the resignation of Nixon from the Presidency within weeks!

In 1997, in Clinton V Jones, the Supreme Court, including two appointees of President Bill Clinton, unanimously by a 9-0 vote, declared that a President had no immunity from civil law litigation in federal court for acts done before taking office. This case involved the sexual harrassment charge brought by Paula Jones against Governor Bill Clinton

Clinton’s evasiveness in testifying in court about Paula Jones led to the Monica Lewinsky scandal, and charges of perjury and obstruction of justice, and his impeachment by the House of Representatives in 1998, although found not guilty by the Senate in the impeachment trial in 1999.

Now, Donald Trump wants “executive privilege” to be in effect to prevent evidence in White House records of what he was doing on January 6, 2021 involving the Capitol Hill Insurrection, to be presented to the January 6 House Committee, investigating the events of that day. President Joe Biden has authorized waiver of such privileges, since Trump is a former President.

Despite having three Trump appointments to the Supreme Court, the strong likelihood is that the Court will, unanimously, reject such arguments, as earlier Courts did involving Richard Nixon and Bill Clinton.

If such does not happen, which seems like a long shot, then the Court will have besmirched its reputation for the long term, and the reputation of Chief Justice John Roberts will be damaged forever.

And that will promote the likelihood of attempts to add four new members to a Court which will be the most condemned and pilloried since the time of Chief Justice Roger Taney during the Civil War!

The Struggle Of Donald Trump With Chief Justice John Roberts More Dangerous Than Earlier Challenges Of Presidents To Supreme Court Chief Justices

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Donald Trump has challenged Chief Justice John Roberts and the Supreme Court, just as he has challenged every other institution of government, but Chief Justice John Roberts seems well prepared to deal with Trump, if and when he gets out of hand.

It is certainly a dangerous struggle, as Donald Trump has an authoritarian bent unlike any earlier President, but it seems clear that Roberts is ready to do what must be done to keep the President within the Constitution.

Earlier in history, there were major confrontations of Thomas Jefferson and Andrew Jackson with Chief Justice John Marshall; Abraham Lincoln with Chief Justice Roger Taney; Franklin D. Roosevelt with Chief Justice Charles Evans Hughes; Dwight D. Eisenhower and Richard Nixon with Chief Justice Earl Warren; Richard Nixon with Chief Justice Warren Burger; and Barack Obama with Chief Justice John Roberts.

But Trump has demanded that the court system favor him in all of his executive orders, and other executive actions, but the Court has refused to back him on a regular basis, leading Trump to say that there are Clinton Judges, Obama Judges, and Bush Judges, but Roberts responding that there are no such descriptions, as all are dedicated to the rule of law, a true rebuke of the President.

On a recent executive order to deny asylum automatically to those who seek it, the Court ruled 5-4 against it, with Roberts joining the four Democratic appointments on the Court, and he has earlier upheld ObamaCare in 2012, and at other times, has sided against conservatives.

It is clear that Roberts sees the Supreme Court as “his Court”, and is concerned about the reputation of the Court long term, so one can be assured that if a case comes up against Trump trying to grab too much power, that he will, likely vote against him, as the entire Court, including three Nixon appointees, voted against him in US V. Nixon of 1974, and when the Court, including two Clinton appointees unanimously voted against Clinton in the Clinton V. Jones Case of 1997.

Presidents In Conflict With The Judiciary Are Nothing New Historically, But Trump Could Be The Biggest Threat Yet To Our Constitutional System

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The conflict of President Donald Trump with the judiciary is not the first time there has been a challenge from a President to the judicial branch.

Thomas Jefferson and Andrew Jackson had regular conflict with Chief Justice John Marshall and the federal courts in the first third of the 19th century.

Abraham Lincoln had vehement disagreements with Chief Justice Roger Taney in the era of the Civil War.

Theodore Roosevelt and Woodrow Wilson both found the Supreme Court as standing in the way of progressive reform in the early 20th century.

Franklin D. Roosevelt was so frustrated by a conservative Supreme Court negating important legislation of the New Deal in the mid 1930s, that he proposed the idea of adding six new Justices to the Court in 1937. This came to be known as the “Court Packing” plan, and was soundly defeated, including by members of his own Democratic Party.

Richard Nixon had issues with the rulings of the Earl Warren Court before he was President, and the continued Warren influence on the Court under his successor, Warren Burger. And, Nixon was stopped dead in his tracks in US. V. Nixon in 1974, forcing him to hand over the Watergate Tapes to the Special Prosecutor, Leon Jaworski, leading him to resign the Presidency in August 1974.

Barack Obama was critical of the John Roberts Court on its conservative decisions early on in his Presidency in 2010.

And now, Donald Trump has unleashed what many consider the strongest challenge to the whole federal judiciary, alarming many constitutional experts as far more dangerous and threatening to the checks and balances of the Constitution and the separation of powers.

It is clear that Trump has declared war on the judiciary, but it could be that the Roberts Court will smack back at him when cases regarding his abuse of power make it to the Court, so Trump may be “hoist by hid own petard”, and regret the attacks he has made on the whole court system.