Chief Justice John Roberts, it turns out, might be more cognizant of the effect that ethics concerns are having on the U.S. Supreme Court than he is letting on publicly. That said, his way of dealing with it is disturbing.

I have covered at Law Dork extensively the reasons why Justice Sam Alito, who is a problem, should have recused himself from the January 6 and Donald Trump-related cases, as well as the Moore v. U.S. tax case.

Although Roberts publicly has deferred to Alito, we learned on Sunday that the chief justice likely cared enough about all of this to keep Alito’s name off of January 6 cases — but not enough to push for Alito’s recusal, at least not in any way that is publicly known or has been reported.

In an extremely revealing report from Jodi Kantor and Adam Liptak at The New York Times about Roberts and Donald Trump that was published on Sunday, the pair of journalists detailed how Roberts “deploy[ed] his authority to steer rulings that benefited Mr. Trump.“

Although there is much of note in the story — including Roberts’s clear goal, from as early as a February 22 memo, to effectively serve as Trump’s inside man on the immunity case — it’s their reporting on the chief justice’s handling of the January 6 obstruction case, Fischer v. United States, that I’m going to focus on here for what it tells us about Roberts and Alito.

This was the case about how the Justice Department was using an obstruction statute — which was originally passed following financial scandals — in prosecuting people charged in connection with their actions on January 6. The defendant challenging the prosecution, Joseph Fischer, argued the provision should be limited because of how it fit in with the rest of that section of the criminal code, and the Supreme Court agreed in a 6-3 opinion by Roberts issued on June 28. (In this 6-3 decision, two justice flipped sides from the ordinary 6-3 ideological breakdown: Justice Ketanji Brown Jackson joined the Republican appointees, and Justice Amy Coney Barrett joined the dissenting Democratic appointees.)

According to the Times, though, it wasn’t originally supposed to be a John Roberts opinion:

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.

What does that mean?

Well, we don’t exactly know. The Times reported that the assignment switch came on May 20, which was four day after the Times had reported on the upside-down flag that flew outside the Alitos’ house in January 2021. (It also, incidentally, came the day after Law Dork’s exclusive report on Alito’s beer stock trades, although even I will admit that is less central to the story here.)

When the Times reported on May 22 about the “Appeal to Heaven” flag flown at the Alitos beach house during the summer of 2023, I wrote about the actions that could be taken to address Alito’s behavior:

If Alito is unwilling to recuse himself from these cases, where recusal is so obvious and when the court’s ethics have been a prominent topic of discussion over the past two years, he must be sidelined in one way or another by his colleagues. No, they cannot force him off a case, but they can make it uncomfortable for him — and make him irrelevant. For the sake of the institution, they — at least seven of them — must.

Chief Justice John Roberts must take responsibility for his court. He can do so — and he can and must be supported in doing so by the three Democratic appointees and the three Trump appointees.

That can start with behind-the-scenes pressure on Alito to recuse. Next, if that doesn’t work, justices can make public statements about the importance of justices adhering to the Code of Conduct when it comes to recusal. Finally, if necessary, they should stick together in the decisions themselves — making compromises where necessary to stay as one — and render his vote irrelevant. If he does participate, they must call out his participation in the cases as unbefitting a justice.

What is notable — and, yes, disturbing — here is that Roberts apparently took “responsibility for his court,” but only by taking actions insofar as they protected his political and policy choices.

Roberts apparently thought it was important enough to the court’s legitimacy that Alito not have his name on the opinion making it harder to bring obstruction charges against January 6 rioters that Roberts took an action that the Times suggested is unprecedented in modern times. Opinion assignments change sometimes, to be sure, but that’s because the votes shift — something that CNN’s Joan Biskupic reported also happened to Alito twice this past term. Here, however, the shift apparently was “it’s now been reported that the Alitos flew an upside-down flag in January 2021.”

Despite that, however, Roberts apparently was fine with Alito staying on the case and providing his vote for the majority opinion.

That matters because, as the Times reported, Jackson had some concerns with the approach apparently supported by the majority initially:

She agreed with the majority that the law had been applied too broadly, according to several court insiders. But she thought the others were going too far by reversing the lower court’s judgment, tossing out the charge in the case before them and undermining many others.

Her intermediate position gave her leverage. She said she would join the majority if they would send the cases back to the lower courts to be reconsidered. The conservatives said yes.

Although Jackson ultimately joined the majority opinion, she nonetheless published a concurring opinion that closed with her view that the facts of Fischer’s case, even in light of the court’s opinion, could potentially still lead to his continued prosecution and conviction under the obstruction statute in question.

Had only eight justices been participating — if Alito had been recused — then it is possible that the court could have been in a different position and, thus, the outcome could have been different. Had that been so, Jackson would have been the controlling vote in the case, with the ability to pull back the opinion as she thought necessary. (Of course, if Justice Clarence Thomas also had been recused due to his wife’s activity surrounding the 2020 presidential election, then only seven justices would have been participating.)

Instead, Alito (and Thomas) participated, so there were already five votes — a majority — for what became Roberts’s opinion for the court. Jackson’s “leverage,” as the Times put it, was, essentially, the leverage any justice has to try and encourage the majority to craft the opinion such that they will join it.

Now, I don’t want to close this without highlighting two other possibilities.

First, Alito himself might have asked for Fischer to be reassigned. There is no reason to believe that Sam Alito would take such a step, so I consider this more a theoretical than actual possibility. But, it is there.

Second, it is possible that there were some behind-the-scenes efforts — thus far unreported — to address the ethical questions surrounding Alito’s participation in these cases. Maybe that’s why the conservatives went along with Jackson’s remand request in Fischer; they were passively discounting his vote. That, though, seems significant enough that it likely would have found its way to Kantor and Liptak’s report given all else they reported.

Instead, it seems more likely to me that the conservatives wanted to have Jackson’s vote to be able to support the ruling as a non-political decision. As such, they were willing to give in on the remand point.

Alito and Thomas, meanwhile, participated in that Fischer vote, as well as the Trump-specific cases. Any ethics questions had been swept under the rug.

Closing my tabs

This Sunday, here are the tabs I’m closing: ...