Chief Justice John Roberts did not flinch.
When Roberts joined liberals on the Supreme Court to preserve an Obama-era program shielding young undocumented immigrants who came to the US as children, he surprised some of his colleagues by voting against the Trump administration from the beginning, according to multiple sources familiar with the inner workings of the court.
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New details obtained by CNN reveal how Roberts maneuvered on controversial cases in the justices’ private sessions, at times defying expectations as he sided with liberal justices. Roberts exerted unprecedented control over cases and the court’s internal operations, especially after the nine were forced to work in isolation because of Covid-19.
The chief justice, for the first time in his tenure on the court, voted to strike down a state law that would diminish access to abortion and, in a decision for the ages, rejected President Donald Trump’s extensive claims of “temporary presidential immunity.”
Roberts also sent enough signals during internal deliberations on firearms restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations. As a result, the justices in June denied several petitions regarding Second Amendment rights.
In an exclusive four-part series, CNN offers a rare glimpse behind the scenes at how justices on the Roberts court asserted their interests, forged coalitions and navigated political pressure and the coronavirus pandemic. The justices’ opinions are public, but their deliberations are private and usually remain secret.
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Overall, Roberts was in the majority on the nine-member bench more than any other justice this session, meaning his views prevailed most in the justices’ private sessions. He used the full power of his position as chief and his place at the ideological middle to shape decisions. And in one instance, Roberts wrested the majority opinion away from a colleague, Justice Clarence Thomas, during the internal opinion-drafting process after votes were taken, according to sources.
As he closed out his 15th term in the center chair, Roberts demonstrated a new ability to calibrate his views and build coalitions. He sided with liberals in some major disputes, yet reinforced his conservatism on religion, voting rights and executive authority over independent agencies
He also finished the session with a health scare – one he initially tried to keep hidden from the public. Just as the session was ending, he fell while at a country club near his home in Chevy Chase, Maryland, hit his head and had to be taken by ambulance to a hospital. Roberts did not publicly reveal the June 21 incident for more than two weeks, and then only after The Washington Post followed up on a tip. A court spokeswoman said doctors attributed the fall to light-headedness caused by dehydration as he was walking and that it was not the result of a seizure, as had happened to Roberts on two prior publicly revealed occasions.
Throughout the term, Roberts continued to draw the predictable wrath of Trump and some Republicans who believe the 2005 appointee of President George W. Bush betrayed the conservative cause. For his part, Roberts appeared to grow increasingly impatient with Trump’s legal positions.
Roberts’ year began with heightened drama that reinforced his position as a gatekeeper of sorts for Trump actions. For three weeks, from late January into February, Roberts presided over the Trump impeachment trial. He oversaw the proceedings, which often went late into the night, on the elevated Senate dais.
He was in the public eye far more than usual during the televised hearings, which ended in Trump’s acquittal. But as much as the chief justice was visible then, it is actions from his Supreme Court perch that make a difference in American life.
Roberts is only 65 and could serve 20 more years. Yet this session and his action on some of the Trump administration’s most visible policy moves will go a long way toward defining his legacy.
How Roberts decided to save DACA
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.
Trump announced in September 2017 that he was ordering an end to the program that shielded undocumented immigrants who came to the US as children from deportation and allowed them work permits. California, New York and other states, along with the Regents of the University of California and immigrant rights groups, challenged the Trump action, saying the administration had not followed federal procedures regarding the phaseout of a program.
The coronavirus pandemic, which seized most of America in March, heightened the potential consequences for DACA beneficiaries, the people who employ them and the people they care for. An estimated 27,000 DACA recipients work in the health care field, as nurses, physician assistants and home health aides, according to filings in the case.
But by the time Covid-19 concerns were at the fore, Roberts was already writing an opinion that would protect DACA beneficiaries for now. He finished his first draft in late March. Three of the liberals responded enthusiastically to the draft opinion, CNN has learned, and asked for only minor changes.
The fourth, Justice Sonia Sotomayor, held off somewhat. She said she would join Roberts on much of the 5-4 judgment but expressed dismay that the chief had foreclosed a possible equal protection violation based on Trump’s racist comments about Mexican immigrants. She soon sent around a draft opinion concurring in part and dissenting in part.
Among the Trump declarations Sotomayor cited in her final opinion: that Mexican immigrants are “the bad ones” and “criminals, drug dealers, [and] rapists.” The court’s first Latina justice also noted that Trump had compared undocumented immigrants to “animals.”
Roberts was ready to give the administration another opportunity to properly phase out the DACA program, and liberals were not opposed. The question, after all, was not whether the Trump administration could end DACA, it was whether it had fulfilled the requirements of the Administrative Procedure Act, which forbade arbitrary and capricious actions.
In Roberts’ opinion, he emphasized that the Department of Homeland Security had failed to sufficiently consider the potential hardships for those who were relying on the DACA program.
In 2019, Roberts had relied on Administrative Procedure Act standards when he rejected Commerce Secretary Wilbur Ross’ attempt to add a citizenship question to the 2020 census. But in that dispute, the chief justice had come to his determination against Ross’ contrived reasoning late in the court’s internal deliberations.
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.”
Blocking conservatives on the Second Amendment
Among the many mysteries of the recent session is why the conservative justices stopped pressing for a new firearms case that would allow them to bolster Second Amendment rights.
After hearing a New York City gun regulation challenge in December, the majority decided the case was moot because the city had amended its ordinance which banned the transporting of guns to firing ranges or second homes outside the city.
CNN has learned that resolution of that case took many twists and multiple draft opinions. Guided by Roberts, Justice Brett Kavanaugh crafted much of what turned out to be an unsigned “per curiam” opinion – joined by six justices, including Roberts – returning the case to lower court judges. Kavanaugh also wrote a separate statement – this one he signed – suggesting it was time for the justices to resolve conflicting interpretations of Second Amendment rights.
Challenges to other firearms regulations were pending and conservatives who had wanted to clarify the scope of the Second Amendment had to consider whether to bring the issue back to the justices.
It takes four votes to accept a case and five to rule on it, and sources have told CNN that the justices on the right did not believe they could depend on a fifth vote from Roberts, who had in 2008 and 2010 voted for milestone gun-rights rulings but more recently seemed to balk at the fractious issue.
In mid-June, the high court turned down petitions from 10 challenges to state laws limiting the availability of firearms and when they can be carried in public.