John Roberts Got Us Into This Mess and He Is Making It Worse

The Roberts Court Is Emboldening Trump When Judges Should Be Saying No

For more access to expert legal analysis, official court documents and breaking news coverage only available here at the intersection of law and politics, please consider becoming a paid subscriber.

By Lisa Graves

We are in the midst of an unprecedented set of constitutional crises. Of course Donald Trump’s belligerent and erratic orders–and his appalling musings–are shaking the foundations of our nation, but it is the U.S. Supreme Court with John Roberts at the helm that is recklessly and aggressively emboldening him. In this nightmarish scenario, the call is coming from inside the house. The Court that is supposed to be a guard against the erosion of the law is rewriting the law–largely in the dark–to allow Trump to take actions that were forbidden to his predecessors.

I had a debate the other day with someone asserting it would only be a constitutional crisis if Trump defied the Court. I replied: that would also be a constitutional crisis (and it’s also already under way, just ask Kilmar Abrego Garcia).

But it would also be a constitutional crisis for the Court to revise or obliterate Trump’s legal obligations until the rules he dislikes are no longer there to defy, which is also well underway.

The truth of the matter is that six lawyers in black robes, three of whom Trump appointed, seem to be buying time to spool out rationales for voiding legal obligations that once bound every president. Even if they had more benevolent motivations than accomplishing key prongs of the Leonard Leo-backed Project 2025 wish list and its antecedents–such as purporting to pacify Trump to prevent another kind of constitutional crisis caused by his defiance–the cost is simply too steep. Preventing Trump from defying a court order by allowing him to do whatever he wants makes for no real rules at all, for him to the detriment of We the People and the American Constitution. It’s a hefty price to pay for the pretense that the rule of law is safe as it is hollowed out before our eyes–by this constitutionally temporary administration and the Roberts Court.

If it feels like we are trapped in a live action sequel to Joseph Heller’s Catch-22, that seems about right. One character in that novel remarked: “Catch-22 says they have a right to do anything we can’t stop them from doing.” This administration–this seven-day-a-week chaos machine–is the worst unscripted TV show I’ve ever seen. Worse, it is playing out across multiple channels multiple times every day and IRL. And we are paying for its expenses in every sense.

America is unmoored, not just because of right-wing propaganda fueling Trump’s distortion of facts and big tech billionaires profiting off of hate for “the other,” the scapegoats Trump names. The fever being stoked could be contained by the law in significant ways if only we had people of principle on the nation’s highest court–like Judge Michael Luttig, a noted conservative named to the Fourth Circuit by the first President Bush–who would put our Constitution above their party. But instead we have John Roberts–whose methods for beating out Luttig for the Supreme Court–and more–I describe in my new book, Without Precedent: How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights.

Roberts and his fellow Republican appointees have used the Court to aid Trump while failing, repeatedly, to protect core principles, long-standing legal precedents, and baseline procedures that other judges have been faithfully following to try to protect against irreparable harm to people, science, and more. The most substantial breach occurred 15 months ago, when Roberts wrecked the vital tenet anchoring our nation to the bedrock of our founding: that no one is above the law.

As I was preparing to write my new book last summer, Roberts orchestrated that singularly destructive ruling that wiped away the serious crimes Trump was charged with, paving the way for his return to the White House. I had feared the ruling in Trump v. United States would unleash the former president from the restraints of the law that had largely held during his first term, the period before the full effect of his three additions to the Court were felt. And I was right. The GOP rewarding John Roberts with a 6-3 supermajority on the nation’s highest court means in reality that there is no longer a swing vote to block extreme partisan edicts, such as the invention of immunity from criminal prosecution for Trump, retroactively and prospectively.

John Roberts was the first beneficiary of the Federalist Society-spawned “No More Souters” campaign. David Souter’s offense? The audacity to follow landmark legal precedents as a Supreme Court justice. Roberts was also the first justice confirmed through the scheme to pack the Court with not-Souters, that is, with political operatives. He was the first beneficiary of the dark money apparatus to capture the nation’s highest court in order to roll back legal precedents and laws disliked by regressive billionaires and the groups and political apparatchik they fund.

As I detail in my book, Roberts has embraced the wish list of the hard core elites in the Reagan Revolution from the outset of his career–he was one of them from the start. He has used his perch at the helm of the Supreme Court to deliver win after win for the right-wing gameplan with few exceptions. Those who cling to the myth that Roberts is an institutionalist seriously mistake the institution to which he is most devoted: it’s the presidency, but only when it’s a Republican, even one acting like an American-born caesar and threatening to stay in power indefinitely.

When Joe Biden was president, the Roberts Court was busy hamstringing modest student loan debt relief during the COVID emergency and inventing huge new obstacles to executive branch actions on climate change–most notably the “major questions doctrine” which Roberts and his clique claimed required Congress to weigh in first despite the EPA’s mandates. Yet, with Trump unilaterally usurping Congress’ power of the purse and trade despite the express language of the Constitution, and more, that same Court faction has conveniently forgotten that “doctrine” and its supposed devotion to judicial restraint by rapidly allowing him to ram full speed ahead.

Roberts has aggrandized the Supreme Court as the decider of all things, even to the point of freeing the executive branch from its origins as the executor of the laws passed by Congress, not the originator of laws under the Constitution–and not above the law, like a king. During the hearings on his nomination, Roberts promised the American people he would adhere to the fundamental principle that “no one is above the law” but, as we can see, when it mattered most, he broke that promise. He knowingly broke that pledge to aid Trump–an act that not only effectively pardoned Trump but even seemed to reach back in time to exonerate Dick Nixon.

Once upon a time in America, Republicans and Democrats agreed that Nixon was a crook who had abused the Department of Justice through his dictates to fire Archibald Cox and protect himself from being held accountable for breaking the law. Now, in MAGA America, the GOP openly embraces Trump’s staffing of DOJ with his former criminal defense attorneys and deploying them against his enemies. Meanwhile Roberts and his fellow Republican appointees to the Court bearhug outlier contentions like the “unified executive” theory to allow Trump to breach decades of legal precedent and practice to fire any exec branch employee at any time for any reason or no reason at all.

Much, much more than that is at stake and, in my view, the wreckage piling up must be laid at Roberts’ feet. The Reagan revolutionary atop the Supreme Court is responsible, along with his fellow partisans, for turning Trump’s transgressions of the Constitution, statutes, rules, and precedents into the law of the land, as if they were alchemizing coal into gold. I’ve heard about this inverted golden rule before: he with the gold rules. The version of the rule of law under Roberts is rapidly diverging from what is morally just or constitutionally sound. As the protagonist in Heller’s novel realized: Catch-22 is not real but because the people in power claim it is, it has real effects–however, because it is not really real it cannot be readily repealed.

Still, we cannot give up. We have to choose hope and work together to reform the Court and restore our freedoms–and help make America a land of liberty and infused with the equal protection of the law, for real. As my work partner, the amazing Alex Aronson, regularly notes, Abraham Lincoln was right when he said: “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers.” The future is still ours to make in our democratic republic–if we do not give up and give in.