John Roberts created a monster. It's about to eat him.
The Supreme Court faces an existential dilemma of its own creation.
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John Roberts and his fellow Republican Supreme Court justices not only paved the way for Donald Trump to retake the White House, but encouraged him to seize dictatorial powers upon his return. Now, the Trump Court’s rightwing ideologues appear poised to green light many of his authoritarian actions, thereby enabling him to further destroy the foundations of our democracy.
But Roberts and his extremist compatriots on the Court face one serious problem: Trump also wants the justices to endorse his campaign against the authority and independence of the judiciary, potentially rendering the Court into a shameless stooge. As a result, the cost of the Supreme Court continuing to do Trump’s bidding may be to undermine the judicial power and authority that Republicans devoted so much effort to obtain.
Roberts prepares a throne
After voting against convicting Trump for his January 6 coup attempt, Mitch McConnell said there was no need for Congress to act because "we have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one."
But Trump escaped such accountability — with the crucial help of John Roberts.
While much has been made of the delays in prosecuting Trump under Biden’s Attorney General Merrick Garland, the players that actually ensured Trump would not be held accountable for his assault on the nation’s democracy were the rightwing jurists on the nation’s highest court who effectively crippled Jack Smith’s prosecution through a combination of calculated delay and a ruling that undermined the rule of law.
First, the Court delayed its immunity ruling for months, and thereby held the Trump prosecution in abeyance. Trump’s initial assertion of immunity in October 2023 was rejected by the trial court in December of that year; but proceedings in the case remained entirely stayed until Trump’s immunity claim was heard and decided by higher courts, a process the Supreme Court chose to drag out, despite a plea from the prosecutor for expedited review. As a result of this likely calculated delay, the Supreme Court did not issue its decision on Trump’s immunity claim until July 2024.
Second, when the ruling belatedly arrived, it was an early Christmas gift for The Donald. Authored by Roberts, the decision not only made it a practical impossibility for Trump to be tried before the election, but also granted him a far broader ambit of immunity than his lawyers had initially even thought of asking for.
Roberts declared that a president enjoys “absolute” or “qualified” immunity from criminal prosecution for any action taken in his “official” capacity. That means that Trump actually could well avoid criminal consequences for using SEAL Team Six to murder opponents — a hypothetical that an appellate judge had used as a darkly humorous hypothetical to demonstrate the absurdity of Trump’s immunity claims.
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Roberts’s immunity ruling not only gutted much of Smith’s case against Trump, it also sent a clear message: If Trump won the election, he could freely engage in even more egregious crimes, secure in the assurance that he would never face criminal accountability. As Justice Sotomayor put it in her dissent, the Court made the president into a “king above the law.”
As later events would demonstrate, Trump and his cronies got the message loud and clear.
I never thought leopards would eat my face
After Roberts and company cleared the way and Trump won last November, the new president took up the Supreme Court’s invitation by embarking on a brazenly illegal attempt to take autocratic power and void fundamental rights.
Despite the fact that Trump enjoys majorities of Republican yes people in both chambers of Congress, he has devoted little effort to passing legislation during his first months in office. Instead, Trump has followed the model of dictators and ruled by decree, issuing barrages of “executive orders” in which he has asserted the right to run roughshod not only over fundamental rights, but also to violate to separation of powers.
With help from Elon Musk’s DOGE team, Trump is crippling institutions and programs whose existence is legally mandated and funded by Congress, like USAID and the Social Security Administration. Musk’s backpack-wearing thugs have even used force and the threat of prosecution to seize the buildings of statutorily independent government agencies that the president has no legal authority to directly control. Trump is also using extortionate threats to force private persons, institutions (including universities and law firms), and states and localities to bend to his will.
Because Republican congressional “leaders” are completely in Trump’s thrall and unwilling to challenge him even when he’s harming their constituents, it has fallen nearly entirely on the shoulders of the lower federal courts to place breaks on Trump’s illegal seizures of power. According to Steve Vladeck, to date, 39 different judges, appointed by presidents of both parties, have blocked illegal Trump actions.
Calling their bluff
Having entered office armed with Roberts’s grant of kinglike immunity, Trump and his cronies have responded to those judges’ enforcement of the law with expressions of anger and increasingly ominous threats.
As soon as judges began issuing rulings limiting Trump’s assaults on the Constitution, he and his cronies began threatening to impeach judges for ruling against Trump.
In response, Roberts released a statement solemnly declaring that "for more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision."
This was not the first time Roberts responded to Trump’s dismissals of judicial authority and legitimacy. In 2019, Roberts rebuked Trump’s attack on an “Obama judge” for enforcing the nation’s asylum laws by stating, “We do not have Obama judges or Trump judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
But Roberts’s 2025 statement has already proven to be as ineffective as his 2019 one was. Rather than signaling any intention to back down, Trump shot back by declaring, "If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!"
It’s clear Trump expects Roberts to follow up his defense of judicial independence by kowtowing to Trump, and repudiating the lower court judges who have been enforcing the nation’s laws. Trump’s confidence that Roberts and company will bend to his will is probably merited — even if stakes for the Court have never been higher.
A Trumpian dilemma
As Trumpers have racked up losses in the lower courts, they’ve begun demanding that Roberts and company immediately step in to give Trump license to continue forward with his power grab.
For example, the Court is now considering an “emergency” Trump challenge to a ruling staying his illegal effort to cancel millions of education grants because they are purportedly infected with “DEI” (that is, civil rights). Trump has also sought immediate Supreme Court review of whether trial judges properly issued nationwide injunctions against his patently illegal effort to erase birthright citizenship from the Constitution. And he just asked the Court to allow him to continue to send Venezuelans to a notorious Salvadoran prison without due process, on the dubious pretext they are wartime enemies.
While it’s unclear what the Court will do in those cases, Trump has good reason to believe a majority of justices will be sympathetic to his dictatorial cause.
Roberts and his fellow rightwing jurists have long signaled their partiality to the so-called “unitary executive” theory. This autocratic theory holds that the president has sole authority over the operation of every executive branch entity, including statutorily independent agencies. MAGA leaders have justified Trump’s actions on this theory, contending that any statutory limits on his authority to control each and every non-legislative and non-judicial component of the federal government is unconstitutional, and therefore void.
If this theory is taken seriously — and it is by rightwing ideologues like those on the Supreme Court — then a majority of the Court may end up ruling that Trump is not only free to fire members of the National Labor Relations Board and Federal Trade Commission (as he has already done), but he could also take over direct control of the Federal Reserve Board and personally set interest rates.
Yet there is one obvious problem with the prospect of the Supreme Court allowing Trump to move forward with his authoritarian project: The justices themselves could pay the high price of discarding what is left of their own already impaired legitimacy.
In recent decades, the Court’s rightwing justices have assumed ever greater power for themselves, including by drastically constraining Democratic presidents and legislators and hobbling landmark legislation such as central provisions of the Voting Rights Act. Indeed, McConnell and GOP donors devoted decades and millions of dollars to stacking all levels of the judiciary precisely in order to stifle Democratic elected officials and advance the Republican agenda.
Yet the Court’s own hard-fought seizure of power from the elected branches of government could well be out the window if Roberts and his colleagues accede to Trump’s current demands and give up any pretense of judicial adherence to the rule of law.
After all, how can the rightwing justices who control the Supreme Court expect a future president — particularly a Democratic one — to accept rulings limiting the exercise of their power from a Court that served as the judicial stooge of an aspiring dictator?
That’s it for today
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Thanks for reading.
The irony is that Robert's has always been so concerned about his court's legacy. Yet he's to damn dense to realize that his court's legacy will be that it's rulings paved the way for the destruction of the Constitution & American Democracy. He is one of the weakest Chief Justices in SCOTUS history & has allowed men like trump & McConnell to completely undermine the Constitution & democracy.
"..[T]he cost of the Supreme Court continuing to do Trump’s bidding may be to undermine the judicial power and authority that Republicans devoted so much effort to obtain."
Definitely a possibility! But what are the odds of Roberts and his political hacks actually standing up to Trump? Back when I was teaching American government to community college students, I would have told them that SCOTUS was a reliable bulwark against blatant abuses of power. Now I'm not so sure...