If you’ve ever wondered about the internal deliberations of SCOTUS, especially in this year of the pandemic, Joan Biskupic has a report on CNN/Politics that may interest you. Here’s one tidbit:
Roberts’ June decision saving the Obama-era Deferred Action for Childhood Arrivals program surprised advocates on both sides and even took some colleagues aback when he had first cast his vote many months earlier in private session, sources told CNN.
Roberts had generally supported Trump’s immigration policies, and in 2016 had privately voted against a related program for parents, rather than children, who had come to the US without papers, sources said. (That case, United States v. Texas, produced a 4-4 vote behind the scenes, after the death of Justice Antonin Scalia, and no resolution on the merits.)
But the new reporting reveals that unlike Roberts’ 2012 move to uphold Obamacare and separate 2019 action to ensure no citizenship question on the 2020 census, Roberts’ action on DACA was not a late vote switch. He put his cards on the table soon after November oral arguments in the case and did not waver, sources told CNN. Roberts believed the administration had not sufficiently justified the rescission of the program benefiting some 700,000 young people and had then developed after-the-fact rationalizations.
Or this Georgia legal code decision:
Roberts’ winning streak extended to a Georgia copyright dilemma, heard in December, when he was able to turn his dissenting opinion into the prevailing view during the drafting process. He captured the majority from Thomas, who had initially taken control of the case once votes were cast in their private session after oral arguments.
The Georgia case decided in April, testing whether a state can copyright its annotated legal code, was not a high-profile one. But it offered an example of the rare but consequential vote-shifting that can occur behind the scenes and make a difference in the outcome of a case and law nationwide.
The court ruled that federal copyright protections do not cover annotations in a state’s code, based on the general principle, Roberts wrote, “that no one can own the law.”
SCOTUS watcher Professor Josh Blackman on The Volokh Conspiracy draws a conclusion:
Wow! “Guided by” As if Roberts was Kavanaugh’s “sherpa.” How demeaning of the Junior Justice? Whoever leaked this fact was trying to make Roberts look powerful, and Kavanaugh look weak. And that “guided by” line looks even worse in light of Kavanaugh’s separate concurrence …
But Robert doesn’t always look powerful, at least to Blackman. Regarding remote deliberations:
Indeed, Roberts encouraged his colleagues to be “brief.”
The chief justice thought there would even be sufficient time after justices had taken their turns for a round of open questioning. For that final round, he said, if anyone wanted to ask a question, he or she could try to break in. He encouraged them to be brief. The chief recognized that several justices might jump in at once. If that happened, he said, he would call on one of them to speak. If he mistakenly called on a justice who was not trying to break in, he had a fix for his colleagues: Try to ask a question anyway. [Biskupic]
This final leak does not make Roberts look powerful. It makes him look petty, and unconcerned for his colleagues. He made these decisions unilaterally, without taking into consideration the views of the other Justices.
Roberts motivations are various and not necessarily harmonious: conservative temperament, concern for legacy, dislike of Trump, perhaps internal divisions, and a liberal wing that has the capability of embarrassing the Chief Justice with ascerbic observations.
Both pieces are interesting reads.
