Jodi Kantor and Adam Liptak at NYT:
In a momentous trio of Jan. 6-related cases last term, the court found itself more entangled in presidential politics than at any time since the 2000 election, even as it was contending with its own controversies related to that day. The chief justice responded by deploying his authority to steer rulings that benefited Mr. Trump, according to a New York Times examination that uncovered extensive new information about the court’s decision making.
This account draws on details from the justices’ private memos, documentation of the proceedings and interviews with court insiders, both conservative and liberal, who spoke on the condition of anonymity because deliberations are supposed to be kept secret.
The chief justice wrote the majority opinions in all three cases, including an unsigned one in March concluding that the former president could not be barred from election ballots in Colorado.
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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
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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.
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The change in authorship wasn’t the last shift in the case. Soon after, Justice Ketanji Brown Jackson deployed her vote to change the outcome.
As in the Colorado case, the vote did not fall along strictly partisan lines. Justice Barrett, along with Justices Sotomayor and Elena Kagan, felt that prosecutors were entitled to charge rioters under the obstruction law. It appeared that Justice Jackson would stand alone. 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. The final vote was 6 to 3, with Justice Barrett siding with the liberals and Justice Jackson with the conservatives.
Prosecutors would get a shot at salvaging some of the cases, including charges against Mr. Trump.