Supreme Court Rebuke of Trump on Sentencing Shows Its Divisions

Two Republican appointees, Chief Justice Roberts and Justice Barrett, joined the court’s three liberals in ordering the president-elect to face sentencing on Friday.

The Supreme Court’s rejection on Thursday of President-elect Donald J. Trump’s request to be spared from being sentenced for 34 felonies was just a few lines long, and it made modest and practical points.

He remains free to appeal his conviction on charges of falsifying business records, the court’s unsigned order said, and appearing by video to face no concrete punishment in a New York court will impose a relatively insubstantial burden.

More striking than the majority’s reasoning was the 5-to-4 vote in the case, which provided a vivid and telling snapshot of the court as it prepares to face a second Trump administration and the torrent of litigation that is sure to follow.

It was no surprise that the court’s three Democratic appointees — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — were in the majority. They had issued bitter dissents, after all, when the court’s six Republican appointees granted Mr. Trump broad immunity in July from federal charges that he had tried to subvert the 2020 election.

That ruling effectively scuttled the case, and it raised concerns that the court would not act as a check against Mr. Trump if he returned to the White House. Those concerns deepened on news that Justice Samuel A. Alito Jr. had conferred with Mr. Trump by phone on Tuesday.

If the votes of the three liberal justices were predictable, those of the two conservative members of the court who voted with them on Thursday — Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett — were more surprising.

The chief justice was the author of not only the immunity decision but also of majority opinions in two other victories for Mr. Trump last term, one casting doubt on some of the federal charges against him and the other allowing him to seek another term despite a constitutional provision barring insurrectionists from holding office.

Those three rulings, the last unsigned but clearly a Roberts product, undermined the reputation he had built over almost two decades as an institutionalist who sought to defend his court against charges that it is warped by politics.

His vote on Thursday was of a piece with the old Chief Justice Roberts, the one who cast the decisive vote in 2012 to uphold the Affordable Care Act, President Barack Obama’s signature legislative achievement, and the one who rebuked Mr. Trump when he went after a federal judge who had ruled against his administration’s asylum policy.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice Roberts said in a statement in 2018. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Mr. Trump, for his part, has been a longtime critic of the chief justice. After the Affordable Care Act ruling, Mr. Trump wrote on Twitter that “I guess @JusticeRoberts wanted to be a part of Georgetown society more than anyone knew,” citing a fake handle. During his first presidential campaign, Mr. Trump called the chief justice “an absolute disaster.”

The court’s three liberals needed to do more than capture the chief justice’s vote to prevail. These days, their most promising potential conservative ally is Justice Barrett, whom Mr. Trump put on the court just weeks before he lost the 2020 election.

Justice Barrett, in the usual journalistic formulation, has an independent streak, one that she exhibited in all three of the Trump cases last term. In each of them, she tangled with the chief justice.

She wrote a notable dissent, joined by liberal justices, from a decision limiting the tools prosecutors can use in cases against members of the Jan. 6 mob. And she voted with the court’s three-member liberal wing in March, saying the majority had ruled too broadly in restoring former President Donald J. Trump to the Colorado ballot.

In the decision granting Mr. Trump substantial immunity from prosecution, Justice Barrett wrote a concurring opinion proposing a different framework from the one Chief Justice Roberts set out in the majority opinion. She said Mr. Trump’s efforts to organize alternative slates of electors were “not entitled to protection” and added that she agreed with the dissent about how evidence may be used in the case.

In all, Justice Barrett was the Republican appointee most likely to vote for a liberal result in the last term. On Thursday, she joined Chief Justice Roberts to reject an urgent plea from the incoming president.

A snapshot is just a moment in time, and it does not predict what the future will bring. But there is some reason to think that it will not be all smooth sailing for Mr. Trump.

In his first administration, he did poorly in the Supreme Court in signed decisions in orally argued cases in which the United States, an executive department, an independent agency or the president himself was a party, prevailing only 42 percent of the time, the lowest rate since at least Franklin D. Roosevelt’s administration.

In other words, a fundamentally conservative court, now with a six-justice majority of Republican appointees that includes three named by Mr. Trump himself, has not been particularly receptive to his arguments. The Biden administration, by contrast, has been on the winning side 54 percent of the time.

Mr. Trump has repaid that track record with bitterness. “I’m not happy with the Supreme Court,” he said on Jan. 6, 2021, during his speech near the White House. “They love to rule against me.”

He spoke ruefully about his three appointees: Justices Barrett, Neil M. Gorsuch and Brett M. Kavanaugh, suggesting that they had betrayed him to establish their independence.

“I picked three people,” he said. “I fought like hell for them.”

On Thursday, Justices Gorsuch and Kavanaugh noted dissents from the order requiring Mr. Trump to appear for his sentencing. So did the court’s two most conservative members, Justices Clarence Thomas and Samuel A. Alito Jr. None of the four gave reasons.

In a statement on Wednesday, Justice Alito said he had talked by phone with Mr. Trump, providing a recommendation for a former clerk. He said they had not discussed pending or impending cases, and he did not recuse himself from the sentencing matter.

Our Coverage of the Supreme Court

• Alito-Trump Call: Justice Samuel Alito spoke with President-elect Donald Trump shortly before Trump’s lawyers asked the Supreme Court to delay his criminal sentencing in New York.
• TikTok Sale-or-Ban Law: When the justices hear arguments over whether protecting national security requires the app to be sold or banned, they will be working in the shadow of three First Amendment precedents.
• Gun Rights and Felons: The Supreme Court has repeatedly ducked Second Amendment challenges to a law that disarms felons. Starkly different decisions from federal appeals courts could change that.
• Roberts’s Warning: Judicial independence is under grave threat on several fronts, Chief Justice John Roberts wrote in an unusually urgent and somber year-end report on the state of the federal judiciary.
• Undisclosed Trips: Justice Clarence Thomas failed to disclose two additional trips from a billionaire patron that had not previously come to light, Senate Democrats revealed after conducting an investigation into ethics at the court.