Tangle - The new report on the Supreme Court.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

This Friday

At the request of our readers, we are going to be doing a side-by-side comparison of Donald Trump and Kamala Harris on the issues: the economy, immigration, abortion, health care, crime, the environment, guns, and foreign policy. We’ll be looking at what they’ve promised in the past, their records in office, and what they are now promising as we head into 2024. 

Quick hits.

1. 11 people were killed and thousands were injured by the simultaneous detonation of hundreds of pagers used by Hezbollah members in Lebanon. Hezbollah claimed the incident was a coordinated Israeli attack on the group's members. (The attack) On Wednesday, a second set of devices (thought to be walkie-talkies) exploded across Lebanon. (The latest)
2. Ohio Gov. Mike DeWine (R) said on Monday that all of the reported bomb threats against residents in Springfield were "hoaxes," with 33 threats investigated and many coming from overseas. (The comments)
3. House Speaker Mike Johnson (R-LA) is holding a vote on a stopgap funding bill today, which includes a provision requiring proof of citizenship to register to vote. Without a new funding bill, the government will shut down on October 1. (The bill)
4. The Democrat-led bill to establish a national right to in-vitro fertilization was blocked in the Senate by Republicans. (The vote)
5. In an effort to address concerns about social media's impact on youth mental health, Instagram began introducing restricted accounts for users under the age of 18. Some of the accounts will be set to private automatically while also encouraging more breaks from using the app. (The effort)

Today's topic.

Chief Justice John Roberts. On Sunday, The New York Times released a behind-the-scenes report on Chief Justice John Roberts’s role in crafting three Supreme Court decisions relating to January 6. In the piece, authors Jodi Kantor and Adam Liptak reported on leaks from inside the court describing Robert’s actions on the blockbuster cases, which all carried significant legal and political ramifications: Trump v. Anderson, Fischer v. United States, and Trump v. United States. Chief Justice Roberts, who wrote the majority opinion in each instance, took uncommon steps to guide the cases, according to Kantor and Liptak.

The Times article renewed discussions about the court’s neutrality and political leanings as its summer recess draws to a close. The Supreme Court’s new term will begin on October 7.

Trump v. Anderson.

In March, the Supreme Court ruled unanimously that Colorado cannot remove former President Trump from the ballot for his role in the events of January 6, 2021. The ruling overturned the Colorado Supreme Court’s decision disqualifying Trump and applied to all states; the court did not take up the question of whether Trump is immune from criminal prosecution at that time. 

Roberts reportedly told the justices he wanted the decision to be unanimous and unsigned, consulting with each justice individually on their decision, which Kantor and Liptak called “a rare step.”

Fischer v. United States.

In June, the court ruled in favor of former Pennsylvania police officer Joseph Fischer, who was charged with obstruction of an official proceeding when he entered the Capitol on January 6. In a 6-3 ruling, the court found that the obstruction charge was misapplied to Fischer, along with about 300 other January 6 defendants, because the accused were not found to have tampered with or destroyed evidence.

Kantor and Liptak reported that Roberts changed the assigned author of the majority opinion from Justice Samuel Alito to himself, despite already being responsible for authoring several key opinions. The authors implied that Roberts did so to avoid the appearance of impropriety in the court, as Alito was under scrutiny for the controversy over an upside-down flag outside his home. Experts say there are no known precedents for a chief justice changing a majority opinion’s authorship in a case without the opinion itself changing.

Trump v. United States.

In July, the Supreme Court ruled 6-3 that former President Donald Trump is entitled to immunity from federal prosecution for his official actions while in office, marking the first time the court has decided that former presidents have immunity for actions within their constitutional authority. The case sent the question of whether Trump’s actions on January 6 fell under his official duties back to lower courts, all but assuring the case would not be decided until after the election.

In February, Roberts reportedly sent a memo to justices saying that lower courts poorly decided the question of Trump’s immunity on January 6, signaling that he wanted the Supreme Court to take up the immunity question and to “view the separation of powers analysis differently.” According to leaked reports, conservative justices worried that they would have insufficient time to analyze the case, while liberal justices were concerned that hearing the case before the election instead of allowing Trump to appeal would drag the court into politics by delaying a trial. 

However, Roberts reportedly insisted on taking the case and drafting the opinion. Many legal experts, including one of Roberts’s most prominent former clerks, would later describe Roberts’s opinion in the case as disjointed and difficult to interpret.

Today, we’ll cover how the left and right are reacting to the Kantor and Liptak piece, as well as Chief Justice John Roberts. Then, I’ll give my take.

What the left is saying.

• The left argues Roberts’s efforts to bolster the court’s legitimacy have been misguided. 
• Some say the leaks reveal Roberts is far more partisan than he seems. 
• Others note that Roberts seems sensitive to public perception of the court’s partisanship. 

In The New York Times, Jesse Wegman said “in the Trump era, the Supreme Court can’t ‘soar above politics.’”

“Roberts orchestrated multiple high-profile rulings last term in ways that benefited Donald Trump, at least partly by acting as though the American people would not interpret them as political,” Wegman wrote. “That attitude was dangerously naïve… Combined with the rulings in Trump’s favor in the other two Jan. 6 cases, it is no surprise that the Supreme Court’s public approval level is hovering around its all-time low. You don’t need a law degree to understand that in the post-Bush v. Gore era, the court treads on extremely thin ice when it inserts itself into presidential politics.”

“At the same time, Roberts gives indications of being aware of the fragility of the court’s legitimacy. In one of the article’s most telling details, the chief justice took charge of writing an opinion in a case involving Jan. 6 rioters — one that had initially been assigned to Justice Samuel Alito,” Wegman said. “Still, masking the radical partisanship of the court’s right-most flank doesn’t fool anyone. If Roberts wants to rebuild public confidence in the court he could start by acknowledging the real world outside One First Street. In a world as polarized as ours, you can’t issue a hugely consequential ruling that’s about Trump and pretend that it has nothing to do with Trump.”

In Slate, Dahlia Lithwick and Mark Joseph Stern wrote “we helped John Roberts construct his image as a centrist. We were so wrong.”

“The biggest revelation here is that the character John Roberts plays as an affable centrist steward of the court’s reputational interests—created largely in the press and played to the hilt by him—is a total fiction. It was Roberts who decided that Trump and Trumpism would prevail in all three insurrection cases and he did not, in this instance, follow in the wake of the court’s aggressive conservative maximalists. He was the aggressive conservative maximalist,” Lithwick and Stern said. “Anyone who believed that John Roberts was a principled movement conservative but also a Never Trumper was wrong. Roberts moved mountains to allow Trump to evade accountability for attempting to unlawfully overturn the results of the 2020 election.”

“The two of us bear some blame for the construction of the chief justice’s false image as a moderate. We have long said that Roberts had a keen eye for the public mood, a sense of the fragility of the court’s legitimacy, and a profound belief that his obligation to history would be to steer a course away from everything Trumpism represents, including vigilante violence and contempt for the rule of law,” Lithwick and Stern wrote. “The Times piece doesn’t ask or answer the question of where that John Roberts… has disappeared to. Whether he was faking it then or is faking it now is almost irrelevant anyhow.”

In The New Republic, Hafiz Rashid suggested the leak “shows Roberts knows exactly how bad Alito is.”

“Supreme Court Chief Justice John Roberts knows that Justice Samuel Alito’s antics and ideology are getting out of hand—and that’s why he’s taking care to protect him from the public eye,” Rashid said. “Roberts had initially assigned Alito to write the majority opinion in a case ruling that prosecutors overreached by charging some January 6 rioters with obstruction of justice in April. But in May, Roberts took over the opinion himself, only four days after revelations that an upside-down U.S. flag, a symbol of the ‘Stop the Steal’ movement, was displayed outside Alito’s home soon after the January 6 attack.”

“It’s unclear whether Roberts’s decision was related to the flag incident, and none of the nine Supreme Court justices responded to the newspaper for comment. Such an unusual occurrence on the court will raise suspicions, though,” Rashid wrote. “Roberts’s move could indicate that there are cracks in the solidarity among the Supreme Court’s six conservative justices. Or it could just be the chief justice scrambling to protect the court’s public image, which has taken massive hits thanks to various ethics scandals as well as unpopular rulings.”

What the right is saying.

• The right views the story as a brazen attempt to undermine confidence in the court.
• Some criticize The Times for construing Roberts’s actions as malicious. 
• Others say the leaks offer surprising insight into the inner workings of the court.

The Wall Street Journal editorial board wrote “John Roberts gets his turn in the progressive dock.”

“The political attacks on the Supreme Court are escalating, and the latest is aimed squarely at Chief Justice John Roberts. It comes in a Sunday story in the New York Times fueled by leaks about internal Court deliberations,” the board said. “It is slanted in the way readers have come to expect from the Times, minimizing the constitutional arguments in the cases and highlighting the political benefit to Mr. Trump… The intent is clearly to tarnish the Court as political, and hit the Chief in particular.

“This is strange on its face since John Roberts is hardly some Trumpian partisan. He has openly criticized Mr. Trump for assailing judges whose rulings the former President didn’t like. Everything we know about the Chief suggests he would have hated to be drawn into what we have called ‘the Trump docket,’” the board said. “The story in the Times is part of a larger progressive political campaign to damage the credibility of the Court to justify Democratic legislation that will destroy its independence. That this campaign may have picked up allies inside the Court is all the more worrying.”

In The Washington Examiner, David Harsanyi argued the report “depicts completely innocuous behavior as corrupt.”

“The fact that any decision might benefit Trump tells us nothing useful about the quality of Roberts’s arguments. Yet other than a couple of vague quotes from experts, the New York Times doesn’t even bother exploring the legal dimensions of a single case. These days, it’s virtually impossible for anyone in politics to process an event without tethering it to the fortunes of Donald Trump. Thus, the notion that the former president’s underlying legal arguments might be worthwhile is unfathomable at the New York Times,” Harsanyi wrote.

“The New York Times insinuates that Roberts sought these cases out specifically to help Trump. But Roberts rejected the ‘conservative’ justices’ efforts to delay the decision until after the presidential election. And he then — brace yourself — beseeched colleagues to avoid looking merely at the ‘transient result’ of this presidential election and consider the broad and ‘profound consequences for the separation of powers and for the future of our Republic,’” Harsanyi said. “What one really takes away from this latest hit piece is that the chief justice’s greatest transgression is disagreeing with Sonia Sotomayor — which typically puts one firmly on the side of the Constitution.”

In Reason, Josh Blackman suggested “the Trump leaks are far worse than the Dobbs leak.”

“In Dobbs, one or more people exfiltrated a draft opinion from inside the Court, and somehow that opinion made its way to Politico…  It was devastating for the draft decision to become public, and it nearly led to the assassination of Justice Kavanaugh. But the aftermath of the leak was swift and overwhelming,” Blackman said. “But the Trump leaks are systematic and thorough. We have insights of confidential memoranda, detailed conversations at conferences, KBJ's changed vote, Justice Alito losing the Fischer majority, and information about many Roberts clerks were working on the case. This tapestry would require insights from so many different people.”

“Justice Kagan is absent from this reporting. There is absolutely nothing about what she thought or did during these deliberations. There are insights into all of the other eight Justices, but nothing on Kagan… I think it likely that Kagan, or at least Kagan surrogates, are behind these leaks. If Kagan is willing to publicly undermine her colleagues in a speech at the Ninth Circuit, why would she do any less off-the-record,” Blackman wrote. “I am still flummoxed how Fischer was simply taken away from Justice Alito… Barely two years ago, he was on top of the world, holding together a five-member bloc in Dobbs. Now he had only four majority opinions, and lost three!”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• I have good reason to trust the reporters behind this story, who have a strong track record.
• That being said, the majority of the report seems like they are making a mountain out of a molehill.
• One element of this story is gravely concerning to me, and it’s how Roberts handled Trump’s immunity case. 

Let me start with a bit of media commentary: I have followed Adam Liptak's reporting for years. Throughout his career, I've found him to insightfully weigh in on court rulings, thoroughly report out investigative pieces, and generally keep his head about him. When I think of the few dozen most prominent reporters in the media, I can usually think of (at least) one big mistake or controversy they have been enmeshed in. For Liptak: Zero. He co-wrote this piece with Jodi Kantor, whose work I am less familiar with (she is well-known for breaking open the Harvey Weinstein story), but Liptak’s record is as good as it gets; he has owned this beat for years.

Therefore, I'm inclined to believe that this piece — despite coming from a decidedly liberal institution like The New York Times — was carefully reported. Which makes the main story pretty stunning. 

A lot of people panicked when the Dobbs decision was leaked to the press, but the breadth of these leaks seems far more serious to me: They include insights into the most sensitive and specific parts of the court's decision-making process, which means Liptak and Kantor have managed to penetrate what is supposed to be an impenetrable space. While I certainly appreciate the insights provided by these leaks as a journalist seeking to understand the court, it’s not a good sign for the court itself.  

Starting from a position of credulity, I have two big takeaways from this piece: 1) Most of it feels to me like making a mountain out of a molehill; and 2) One specific part of the reporting seems far more significant and frightening than anything else.

To the first point, I think much of the piece covers what could be perfectly innocuous happenings with a rather grave tone. Take Trump v. Anderson, the case where Trump was kept on the Colorado ballot. I don't have a law degree, but I predicted the outcome of the case before it was heard because the outcome was rather obvious. All this story adds is that Roberts consulted each justice individually on the case (which seems like part of his job, even if he doesn’t do it for every case) and then pushed for an unsigned opinion (which doesn't seem like a big deal since the ruling was unanimous).

In Fischer v. United States, Liptak and Kantor reveal that the author of the majority opinion was changed from Alito to Roberts four days after the flag controversy broke. We don't know why it changed, but the authors link it to that controversy. Yes, this is unusual. Yes, it raises some questions. But I don't really see the problem. It was still a 6-3 ruling with Justice Jackson joining the conservatives, Justice Barrett joining the liberals, and the case going back to the lower courts. Roberts gave the complicated and unprecedented case a complicated and nuanced ruling — and one that I agreed with, by the way (though it's the only case here we didn't cover). As with the Colorado case, Roberts essentially just did something uncommon but innocuous. 

What did worry me, though — grievously — was the reporting on how Roberts handled Trump's immunity case. What we learned from this reporting is that conservative justices on the court (including Gorsuch and Thomas) wanted more time to properly analyze the case, while the liberal justices (persuasively) argued that they shouldn’t take the case up. After all, it could have fallen apart, Trump could have been found innocent, or he could have been convicted and appealed the verdict. 

Instead, Roberts expedited the case, insisting it be heard in the spring term. He took the lead, despite being overextended on a blockbuster term already. He believed he could write a grand opinion for the ages that would exist above the political fray (how naive can you get?), and then he fumbled the ball. He wrote a poorly written, disjointed, hard-to-interpret opinion on arguably the most important case before the court last spring, and — as I've argued here and here and here — the court got it completely wrong. The ruling will either unnecessarily expand a presidential power that is already too far-reaching, or result in a slew of convoluted and contradictory rulings. 

This part of the story reeks of someone more worried about their own legacy than the law, more interested in the court inserting itself than playing passive referee, which is its job. And, crucially, it’s the strongest evidence we have that Roberts thumbed the scale in a way that helped Trump — even above the objections from the court’s most conservative and liberal justices, who pushed back for different reasons with their own merits. 

However, I don’t think Roberts was motivated explicitly by wanting to help Trump — instead, that outcome seemed like a consequence of Roberts’s motivations. Quotes from the court’s conservatives show that they seemed determined not to weigh in on details concerning Trump:  “I’m not discussing the particular facts of this case” (Justice Alito) and “We’re writing a rule for the ages” (Justice Gorsuch). But when you consider that Roberts pushed the court’s conservatives by taking up this case and then insisted on penning an inscrutable opinion to represent their position, you get a worrisome picture of the chief justice.

To me, that picture — of a chief justice unwilling to listen to his colleagues, singularly concerned with the court’s legacy, and so overwhelmed he penned an opinion even his most well known clerk would then criticize as poorly written — that picture worries me a great deal. 

All of this will further harm the court’s already tattered reputation and raise even more suspicion among liberals that the court has been corrupted by the very politics Roberts says he is trying to avoid. It will, in a very real sense, further erode whatever trust is left in an institution that relies on the people’s belief in it. 

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Your questions, answered.

Q: I am wondering, now that colleges are back in session, are you going to cover what students are doing and saying on American campuses about the War in Gaza? Do you think any of the student protests (on both sides) will affect the presidential election?

— Steve from Waltham, MA

Tangle: I can answer the first question pretty quickly: We'll cover the protests again this fall if they become a major story. But current protests are much more constrained than they had been in the spring, and you can probably expect that to continue — that’s just part of the rhythm of campus life. However, if the war changes meaningfully, the campus protest could become a significant story again. Any ceasefire or long-term peace or (God-forbid) escalation in violence or spillover of ground forces into the West Bank will be a story in the United States, and campuses will likely be at the center of the response. 

Will protests affect the presidential election? Maybe! As we wrote in a Friday piece about polling and election frameworks, both campaigns are going to be fighting to make their preferred one or two big issues “the story” for the election. I think those stories are going to be either abortion or the economy or immigration or January 6, and in that way I don’t think that student protests — or even Israel/Gaza — are going to be a big deciding factor.

However, I can definitely see a world where one of the candidates makes a statement about protests that moves the needle just enough to motivate young voters in swing states like Pennsylvania or North Carolina to tip the scales. I don’t think that’s the most likely scenario, but it is possible.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to our inbox) or fill out this form.

Under the radar.

Rupert Murdoch, the media mogul who owns The Wall Street Journal, The Times of London and Fox News, is embroiled in a family drama with huge implications for the future of U.S. news. This month, a probate commissioner in Nevada will hear arguments in a case about whether Murdoch, 93, can change the terms of a trust that evenly splits the voting shares he holds in his companies among his five children after his death. Murdoch is seeking to amend the trust to consolidate power with his son Lachlan, who broadly shares his father’s conservative views. If Rupert Murdoch succeeds, Lachlan would likely maintain Fox News as a firmly conservative outlet. A ruling against the elder Murdoch, however, would grant his other children power to pool their voting shares to force a change in direction. Vox has an explainer on the case. 

Numbers.

• 2005. The year John Roberts was confirmed to the Supreme Court.
• 50. Roberts’s age when he was confirmed, making him the youngest chief justice since John Marshall in 1801.  
• 60%. The percentage of Americans who supported Roberts’s confirmation to the Supreme Court in September 2005, according to Gallup.
• +21%. Roberts’s net approval rating in 2010.
• +2%. Roberts’s net approval rating in 2023.
• +20%. The Supreme Court’s net approval rating in September 2005. 
• -9%. The Supreme Court’s net disapproval rating in July 2024. 
• 68%. The percentage of Americans who said they had trust and confidence in the Supreme Court in September 2005. 
• 49%. The percentage of Americans who said they had trust and confidence in the Supreme Court in September 2023.

The extras.

• One year ago today we wrote about the United Auto Workers strike.
• The most clicked link in yesterday’s newsletter was the story of identifying “celebrity #6.”
• Nothing to do with politics: A former Russian spy found dead under mysterious circumstances. The spy? Hvaldimir, the beluga whale.
• Yesterday’s survey: 1,114 readers responded to our survey on Nippon Steel’s proposed acquisition of U.S. Steel with 75% in support. “Don't know all the details of the deal, but if it includes some safeguards for employees, both union and nonunion, then it should be a go,” one respondent said.

Have a nice day.

An estimated 28.8 million adults in the U.S. could benefit from using hearing aids, while only 30% of adults over 70 have ever used a hearing aid, according to data from the National Health Interview Survey. However, they could be getting an unlikely assist from Apple’s AirPods Pro 2. According to Apple, the new AirPods will use the product’s in-ear seal and noise canceling technology to conduct a “clinical grade” hearing test. Furthermore, users will be able to use an “enhanced audio” feature to set up the AirPods 2 as hearing aids. The Hill has the story.

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