John Roberts’ Historic Failure as Supreme Court Chief Justice, Part II

As I wrote in last week’s Note, “Roberts has taken the lead in writing a series of opinions that have destroyed essential rules governing our democracy.”

But it is even worse. Supreme Court Chief Justice John Roberts likely has done more damage to our democracy than any other Chief Justice in American history.

Roberts’ opinions have eviscerated key rules governing money in politics, gutted voting rights protections, sanctioned extreme gerrymandering and crippled bribery laws.

And now the Chief Justice is also playing handmaiden to Trump’s effort to be the autocrat that he obviously wants to be.

Trump, for his part, has never been mysterious about what he wanted to do. He publicly made his intentions clear in August when he said he has “the right to do anything I want to do. I’m the president of the United States.”

Roberts, however, acts as if Trump is a normal president and nothing is wrong. As Trump and his administration run roughshod over federal laws, the Constitution and federal court orders, Roberts has failed to assert his authority as head of an independent, coequal branch of government or to protect the rule of law.

Roberts paved the way for Trump’s autocracy when he wrote the opinion in Trump v. United States (2024) that granted Trump presidential immunity.

Roberts wrote that presidents have absolute immunity from prosecution for certain core official acts and presumptive immunity for other official acts. He justified this sweeping grant of presidential protection by saying presidential immunity was needed to have an “energetic” and “fearless” executive.

Roberts ignored, however, the foundational principle so important to our Founders – that nobody is above the law. The Founders had won their freedom from one king and did not want another one – ever.

The Roberts opinion also gave Trump absolute control of the Justice Department and FBI, an exceedingly dangerous power. With his new authority, Trump immediately turned the DOJ and FBI into his private army to carry out his retaliation and retribution campaign against his perceived enemies.

Trump is now planning to use his personal police, as well as his investigative and prosecution force, to stifle as much dissent and opposition as he can get away with, in the guise of attacking domestic terrorism. But he defines domestic terrorism as only carried out by the “left.”

The effort to stop Trump’s abuses of power is reflected in over 400 lawsuits already brought against Trump administration actions, with more than 100 of these actions already temporarily or permanently blocked by lower federal court decisions, according to the Just Security tracker.

The Supreme Court, however, has been a different story.

While lower federal court judges courageously challenge Trump and in turn face vicious attacks, violent threats and harassment from Trump and his followers, Roberts and his Republican-appointed Supreme Court colleagues have repeatedly supported Trump in the relatively few but important cases that have reached them.

The Trump administration has been using the Supreme Court’s “emergency docket” to challenge injunctions issued by lower courts against them. When the administration wins these interim decisions, administration policies continue in effect until the cases are finally resolved, which can take months if not years. Even if the administration eventually loses on the merits much if not all of the damage will already have been done.

As of September 10, according to Reuters, the Trump administration had filed 25 “emergency docket” applications in the Supreme Court that challenged lower court rulings blocking administration efforts. The Supreme Court has acted on 24 of the cases, ruling in favor of the Trump administration in whole or in part in 21 of the cases, ruling against him in 2 and one became moot.

Decisions that come from the “emergency docket” generally are not briefed, do not have oral argument and are made without issuing opinions. Thus, the parties, the judges and the public do not know the reasons for the decisions.

The Supreme Court majority, led by Roberts, is abdicating its constitutional responsibilities as an independent, co-equal branch of government. In so doing, they are flat out failing the nation they have taken an oath to serve.

Trump’s march to autocracy in the end has only one sure solution: it must be stopped by the American people demanding and acting to ensure that our democracy prevails.

Basta.

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Fred’s Weekly Note appears on Thursdays in Wertheimer’s Political Report, a Democracy 21 newsletter. Read this week’s newsletter, and other recent editions, here. And subscribe for free here and receive your copy each week via email.