Since he was appointed Supreme Court chief justice by George W. Bush in 2005, John Roberts has been something of an enigma. He initially tried to cultivate a reputation as a fair-minded institutionalist, occasionally surprising observers in controversial cases, as he did when he cast the deciding vote upholding the constitutionality of the Affordable Care Act.
But don’t be fooled. Roberts is no moderate. He's a right-wing idealogue whose leadership has done great damage to the Supreme Court, the Constitution, and the country and lately become an enabler of former President Donald Trump.
As to his legal philosophy, a review of his record by the left-leaning nonprofit Take Back the Court Action Fund suggests that “Roberts has been one of the most conservative justices since joining the Supreme Court in 2005.” There “is almost no partisan difference distinguishing Justices Roberts, Gorsuch, Alito, Roberts, and Scalia.”
A New York Times report now brings more evidence that, like so many others, Roberts, once willing to stand up to former President Trump, has made peace with him and joined the coterie of people who condone Trump’s behavior and give him cover. The Times article highlighted the crucial, behind-the-scenes role that Roberts played in ensuring that the Court would protect Donald Trump in three January 6 related cases decided last term. His Machiavellian manipulations culminated in July when the court gave Trump a shocking victory by granting the president broad immunity from criminal prosecution.
Roberts has come a long way since his testimony during his confirmation hearings before the Senate Judiciary Committee. Then, he took pains to assure his listeners that judges “are not politicians.” He insisted that he had “no agenda.” He would “decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.” He promised to “be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law.”
The Times points out just how far Roberts has departed from those commitments in regard to President Trump. As the Times put it, “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…. The chief justice responded by deploying his authority to steer rulings that benefited Mr. Trump.”
Last February, as the court got ready to hear arguments about whether Trump should be disqualified from being on the ballot because of his activities as an insurrectionist following the 2020 presidential election, Roberts got right to work. The Times reports, "While all nine justices agreed that Mr. Trump should remain on state ballots, four of the conservatives were pushing to go beyond that and rule that the Constitution’s prohibition would require congressional action to take effect…. That left the chief justice in control of the outcome…. Ultimately, he sided with the four conservatives in an opinion that he wrote, but that was issued unsigned.“
In Fischer v. United States, another case arising out of the January 6 events, the court found that prosecutors had overreached in the charges they brought against some of the rioters. Here too, Roberts played a critical behind-the-scenes role.
The Times notes that he had originally assigned the opinion to be written by Justice Samuel Alito. But, after the revelation that Alito had flown an American flag upside down to symbolize solidarity with those who had stormed the capital, Robert again sprang into action. He benched Alito and wrote the opinion favoring the insurrectionists himself.
Completing last term’s pro-Trump hat trick, Chief Justice Roberts led the way in coming up with a decision granting the president the kind of immunity from criminal prosecution available to no other citizen in the United States. As the Times explains, long before the court heard the oral argument in the immunity case, the Chief Justice sent his colleagues a confidential memo offering a “scathing critique” of the Court of Appeals' decision finding that the president had no immunity from prosecution.
That memo offered “a startling preview of how the high court would later rule.” Slate’s Mark Joseph Stern got it right when he observed that the immunity decision that Roberts wrote “fundamentally altered American democracy…., awarding the president a sweeping and novel immunity when he weaponizes the power of his office for corrupt, violent, or treasonous purposes.”
“This near-insurmountable shield against prosecution for crimes committed while in office,” Stern explained, “upends the structure of the federal government, elevating the presidency to a king-like status high above the other branches.”
And thanks to Roberts, Trump has been able to delay his trial on charges arising from his role in the January 6th insurrection. And should Trump return to the Oval Office, there would be little to stop him “from assuming” what Stern labels “dangerous and monarchical powers.”
When Trump was in office, Roberts occasionally stood up to the administration as he did in the case saying the administration could not reinstate a question about citizenship in the 2020 census. But, in what was arguably the most significant case (Trump v. Hawaii) about the power of the presidency decided during Trump's term, Roberts again led the way in defending Trump. He upheld his decision to limit entry into the United States by citizens of many predominantly Muslim nations. In doing so, Roberts ignored a series of statements that Trump made during the 2016 presidential campaign advocating a “total and complete shutdown of Muslims entering the United States.” He called them “extrinsic statements—many of which were made before the President took the oath of office.”
He delivered for Trump, recognizing the president’s “broad discretion to suspend the entry of aliens into the United States.”
While we did not know it then, Roberts’ willingness to ignore Trump’s worst behavior to advance an expansive conception of presidential power foreshadowed what he would do in the presidential immunity case. In that case, as Stern puts it, his opinion went out of its way to “gloss… over much of Trump’s most egregious misconduct.”
And the Chief Justice’s accommodation of the former president has come at a high cost to the Court. Roberts presided over a court that has lost the confidence of the American people. In 2005, 56% of the people approved of how the Supreme Court handled its job. This year, that number has fallen to a historic low, with only 41% registering approval of the court.
The New York Times expose of Roberts’s key role in last term’s dismantling of the Constitution to protect Donald Trump is the latest evidence of how far the Chief Justice has come in becoming a MAGA judge. It shows his often unseen but crucial role in leading what commentators rightly have labeled an “extreme, right-wing majority, which is rapidly turning the court into little more than a partisan extension of the Republican Party.
