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.
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.
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
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
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.
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.
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.
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.
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.
Not only was Roberts, with his new position at the middle of the bench since the 2018 retirement of Justice Anthony Kennedy, controlling how cases were decided, he also was influencing what cases were even taken up.
Keeping the liberals at bay
Roberts’ decision in the DACA controversy represented a departure for the chief justice on Trump immigration practices. He had given the administration great leeway, beginning with his 2018 opinion, joined by fellow conservatives, upholding the Trump travel ban aimed at majority-Muslim countries.
Three months later, amid a new dilemma over the rules arising from the Covid-19 virus, Roberts took the lead against immigrant interests yet mollified liberals poised to dissent publicly, CNN has learned.
New York state officials in April implored the court to lift or modify its January order, arguing that the policy was deterring immigrants from accessing public health and medical benefits to prevent or treat Covid-19.
According to sources, liberal justices believed the pandemic had transformed the situation and wanted the administration to clarify its rules to help places like New York hit hard by the virus in the spring. Roberts was unmoved and believed administration guidance was clear that immigrants could obtain Covid-19 care without consequence to their green-card applications. Other conservative justices agreed.
Liberal justices wrestled with how far to go with their contrary view and whether to publicly dissent, CNN has learned from inside accounts. Some justices also worried that if the request were rejected, the high court would appear to be unconcerned about people getting sick from the coronavirus.
Roberts resisted, CNN has learned. But the chief justice had an interest in tamping down the tensions and agreed to a modest compromise that sent the signal the liberals sought in the court’s order and ensured that the challengers were not prevented from pressing ahead.
Covid-19 gives Roberts more power
That decision caused some internal grumbling, CNN has learned, about the format and over how much time each justice would get to question a lawyer. Roberts ended up allowing each justice three minutes.
To avoid possible confusion about who was talking during the phone sessions, Roberts decreed they would ask questions in order of seniority, beginning with himself. During the regular in-courtroom sessions, the justices’ questions are rapid-fire. With little regard for order, they pound away at weaknesses in the lawyers’ positions, highlight points that interest them and try to make their own cases to colleagues.
Roberts carefully outlined the timing for the advocates and justices who would be connected by telephone. The plan was similar to an arrangement used a week earlier by a US appeals court in Washington for a nine-judge hearing.
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.
But on one question there was no doubt: John Roberts was in charge.