John Roberts, Protector of the Presidency

Chief Justice Roberts promised at his confirmation hearing to be a caller of balls and strikes. He has turned out to be something grander — a defender of the presidency unrivaled in the history of the federal judiciary. That is the impression we take from the Times’s latest foray into the supposed perfidy of the Roberts Court. The portrait painted — maybe unwittingly — is of a chief in firm command and in full possession of his constitutional bearings.The opinions authored by the chief justice — on the disqualification clause of the 14th Amendment, on presidential immunity, and on whether a law derived from the Sarbanes-Oxley Act can be used to prosecute January 6 rioters — mark an effort in triplicate to reign in overzealous prosecutions and various species of cowboy constitutionalism. In the disqualification case, Trump v. Anderson, he wrote for a unanimous court.The Times notes that Chief Justice Roberts “seemed confident that his arguments would soar above politics, persuade the public, and stand the test of time.” Or, as Justice Neil Gorsuch put it in oral arguments, succeed in writing a “rule for the ages.” The Gray Lady reduces the immunity holding to “an epic win for Mr. Trump.” The chief, though, was clear that his court “cannot afford to fixate exclusively, or even primarily, on present exigencies.”It has been remarked that Chief Justice Roberts is an institutionalist who lays awake at night worrying over the credibility of the court. In one of his finest moments, he held fast against the efforts of Democratic lawmakers to summon him for questioning. He also has batted back efforts on the left to forcibly recuse his fellow justices, reminding the solons that the decision of whether to withdraw from a case belongs to individual justices alone.The chief justice’s separation of powers jurisprudence, though, discloses him to also be a defender of the rival institution of the presidency — and the judiciary. It could be that the chief sees the prosecutions of President Trump as holding the potential to harm not just the 45th President, but all who hold constitutional office. The guardrails that the justice has thrown up could be intended to protect more than Trump and his successors at the White House. The Journal, in a trenchant editorial, marks the “story in the Times” as “part of a larger progressive political campaign to damage the credibility of the Court to justify Democratic legislation that will destroy its independence.” The Times story was helped by sources within the court — possibly by some of the justices. What Chief Justice Roberts’s antagonists within the court have failed to do via persuasion they could be attempting through leaks.Chief Justice Roberts’s opinion in Trump speaks to “all occupants of the Oval Office, regardless of politics, policy or party.” It still, in our reading, leaves an all-too-ample berth for presidents to be convicted based on their private behavior. President Biden and Vice President Harris, though, are pushing a constitutional amendment to strip away all immunity whatsoever. That could open the floodgates to prosecutions driven by politics, policy, or party.

John Roberts, Protector of the Presidency

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