John Roberts did not like Alito giving the game away too early

We’ve already discussed Kantor and Liptak’s big article about John M.A.G.A. Roberts [gift link], but we haven’t discussed Roberts taking away the opinion supporting the 1/6 rioters after Alito was revealed to have flown a seditionist flag outside of his house:

Another case involved a highly unusual switch. In April, the chief justice assigned Justice Samuel A. Alito Jr. to write a majority opinion saying that prosecutors had gone too far in bringing obstruction charges against some Capitol rioters. But in late May, the chief justice took it over.

Who initiated the change, and why, is not clear. The switch came days after The Times reported that an upside-down flag, a symbol of the Stop the Steal movement, had flown outside the Alito home following the Capitol attack. While that timing is suggestive, it is unclear whether the two are linked. (All nine justices declined to respond to written questions from The Times, a Supreme Court spokeswoman said.)

[…]

The next case, one with the potential to undermine charges against Mr. Trump, spurred behind-the-scenes footwork by the justices, including the mysterious reassignment of a majority opinion.

The case, Fischer v. United States, posed another sensitive question: Had prosecutors overreached in charging some Jan. 6 rioters under a law originally aimed at white-collar crime? Of the nearly 1,500 people who had been indicted in the Capitol attack as of June, when Fischer was decided, about 250 cases included a charge of obstructing an official proceeding.

After oral arguments in April, a majority of the court, including the chief justice, privately concluded that prosecutors had erred. It appeared that the result would narrow, overturn or prevent convictions of some Capitol rioters. It also seemed poised to imperil some of the charges against Mr. Trump, which included obstructing Congress’s certification of the 2020 election.

The chief justice assigned the opinion to Justice Alito, according to several court insiders. But a month later, Chief Justice Roberts updated the court: Justice Alito was no longer the author. The chief justice was taking over the opinion.

Outside the court, the switch went undetected. Inside, it caused surprise. To change authors without the judgment itself shifting was a break from court procedure, several court insiders said.

In interviews, Supreme Court scholars agreed. “Can I tell you an instance when it’s happened? No,” said Paul J. Wahlbeck, a professor at George Washington University who has studied opinion assignments.

The chief justice and Justice Alito did not respond to inquiries from The Times about the reason for the change. But the date of the new assignment, May 20, offers a possible clue. Four days earlier, The Times had reported on the upside-down flag that flew at the Alitos’ Virginia home soon after the Jan. 6 insurrection at the Capitol.

As the three Jan. 6 cases were being decided, Americans’ trust in the court was at a near low, polls show. Justice Thomas had declined to recuse himself from matters related to Jan. 6, even though his wife, Virginia Thomas, had encouraged Mr. Trump’s efforts to overturn the election. After the flag revelations, some legal experts and lawmakers pushed Justice Alito to recuse himself from the three cases. He also declined.

For someone to lose a majority opinion they’ve been assigned is very rare, and in every case I’m aware of it happened because 1)the justices assigned the opinion changes his mind (like Kennedy in Lee v. Weisman) or 2)the judge loses or seems in danger of losing the majority. Neither condition applies here, which makes the inference obvious.

I’m not sure, though, there’s much point in this keeping up appearances when you’re going to conclude the term by putting an upside down flag with your name on it in the United States Reports:

During the February discussions of the immunity case, the most consequential of the three, some of the conservative justices wanted to schedule it for the next term. That would have deferred oral arguments until October and almost certainly pushed a decision until after the election. But Chief Justice Roberts provided crucial support for hearing the historic case earlier, siding with the liberals.

Then he froze them out. After he circulated his draft opinion in June, Justice Sonia Sotomayor, the senior liberal, signaled a willingness to agree on some points in hopes of moderating the opinion, according to those familiar with the proceedings. Though the chief justice often favors consensus, he did not take the opening. As the court split 6 to 3, conservatives versus liberals, Justice Sotomayor started work on a five-alarm dissent warning of danger to democracy.

In his writings on the immunity case, the chief justice seemed confident that his arguments would soar above politics, persuade the public, and stand the test of time. His opinion cited “enduring principles,” quoted Alexander Hamilton’s endorsement of a vigorous presidency, and asserted it would be a mistake to dwell too much on Mr. Trump’s actions. “In a case like this one, focusing on ‘transient results’ may have profound consequences for the separation of powers and for the future of our Republic,” he wrote. “Our perspective must be more farsighted.”

But the public response to the decision, announced in July on the final day of the term, was nothing like what his lofty phrases seemed to anticipate.

Both conservatives and liberals saw it as an epic win for Mr. Trump. The former president and his supporters exulted over the decision, which greatly expanded presidential immunity and pushed off any trial until well after the election — if ever. To Democrats, the Republican-appointed justices were brushing away the violent Capitol attack and abandoning the core principle that no one is above the law. The chief justice, who had long said he wanted to keep the court out of politics, had plunged it more deeply in.

[…]

But many legal experts said they could not figure out how the ruling should be applied. Even Justice Barrett, who had joined much of the opinion, wrote that it could have been clearer.

One footnote left scholars wondering whether former presidents could ever be prosecuted for taking bribes. An N.Y.U. professor was startled to discover that the opinion, which leaned heavily on Nixon v. Fitzgerald, a 1982 case on presidential immunity, truncated a quote from that decision, changing its meaning.

The decision to quietly and ultimately pointlessly take the second case in the Trump hat trick away from Alito is further evidence that Roberts really did convince himself that his lawless party-line immunization of Trump was an opinion everyone was going to admire as a great Act of Statesmanship. It’s as good an illustration of how fully Trump has captured the Republican Party elite as any.