The Delusions of John Roberts
Margaret Talbot The New Yorker
Supreme Court Chief Justice John Roberts. (photo: Julia Nikhinson/Pool)
The Chief Justice insists that his Supreme Court isn’t biased even as it keeps making dramatic leaps rightward.
Because none of the Justices had invited Trump, he couldn’t be placed in the section reserved for their families and other guests. Since he loathes the press, it was hard to imagine him sitting among the journalists, most of whom perch on creaky bentwood chairs in crowded alcoves. Because Trump was a party in the case, Court officials felt that he shouldn’t be given the seat Presidents occupy during swearing-in ceremonies for Justices—typically the only time they visit. In the end, the officials put him in the front row of the public section, where he glowered at the Justices, his signature red tie dangling, one hand on each knee.
It felt like a mafioso move. For months, he’d been denouncing the Justices—particularly two of his own three appointees, Neil Gorsuch and Amy Coney Barrett—when they didn’t decide his way. In February, after the Court ruled that Trump couldn’t invoke a national emergency in order to impose sweeping tariffs, he told reporters that Gorsuch and Barrett, who’d joined the 6–3 majority, were “an embarrassment to their families.” At a White House Easter lunch later that day, Trump made it clear that he sees judicial appointments as quid pro quos, doing a mincing imitation of Justices who won’t knuckle under: “ ‘I don’t care if Trump appointed me, I don’t care, it doesn’t make any difference to me—I’m voting against him!’ ” He added, “They want to show their independence, you know? Stupid people.” (The White House posted, then took down, a video of the speech.)
Watching Supreme Court oral arguments can feel like watching a play—the Justices emerge from behind red velvet curtains to take their appointed seats at a long bench. As Clare Cushman, of the Supreme Court Historical Society, told me, “It’s not entertainment, but it’s entertainment-adjacent.” On April 1st, Trump’s presence generated dark comedy and cringily implausible encounters. He arrived at the Court with a posse: Howard Lutnick, the billionaire Commerce Secretary; David Warrington, the burly White House counsel; and Pam Bondi, the obedient Attorney General whose firing, for not being obedient enough, Trump announced the next day. (He reportedly gave her the news while they rode in a limousine to the Court.) In the guest section, apparently at the invitation of one of the liberal Justices, sat Robert De Niro, an inveterate Trump critic. A few rows behind the President was John Eastman, a former lawyer known for opposing birthright citizenship; he’d been disbarred in California for his role in a scheme to return Trump to the White House after the 2020 election. On the plaza outside, the celebrity chef and activist José Andrés, wearing an “Immigrants Feed America” T-shirt, addressed protesters who carried signs saying “It’s Literally in the Constitution” and “Born Here, Belong Here.”
Peter Shane, a constitutional-law scholar at New York University, told me, “I wondered if Trump understood that he wouldn’t be the center of attention. The Chief Justice wouldn’t be staring him in the eye, there’d be no television cameras on him. That is not usually his cup of tea.” In the end, there were no disruptions, not even when Trump walked out after the government’s lawyer made his presentation and before the opposing lawyer, from the A.C.L.U., had got very far into hers. The Justices seemed to avoid even glancing at the President.
Still, it was another profoundly strange moment in a profoundly strange time for the Court—especially for the seventy-one-year-old Chief Justice, John Roberts. Twenty-one years into his tenure, he keeps waking up, “Groundhog Day” style, to the same ironic scenario: he’s a proponent of maximal Presidential authority who is compelled to deal with a President especially likely to abuse it. (Roberts, a George W. Bush appointee who is reflexively polite, with a self-deprecating sense of humor, probably wouldn’t even enjoy a round of golf with Trump.) Roberts has leveraged his mild persona to defend the Court’s political neutrality at a time when Americans increasingly see it as partisan; according to a recent poll by the Pew Research Center, more than half hold an unfavorable view of it—a near-historic low. Whereas Roberts likes to stress that the Court is fundamentally nonpartisan and frequently unanimous—the Justices agree around forty per cent of the time, though typically on minor issues—many Americans believe that he has presided over a rightward march in the Court’s jurisprudence, on such issues as affirmative action, immigration and asylum, abortion, voting law, gun rights, and the separation of church and state. And, with a few high-profile exceptions, such as the tariffs case, his Supreme Court has overruled lower courts to permit much of Trump’s second-term agenda to proceed. This has often happened without explanation, because the decisions have been issued on the emergency, or “shadow,” docket—that is, decided without a full briefing, oral arguments, or detailed opinions. Of the thirty-five requests for emergency action made by the second Trump Administration—on everything from defunding scientific research to allowing people to be deported to “third countries” where they have no affiliations—the Court has ruled in the Administration’s favor, in part or in full, twenty-five times, generally with the three liberal Justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, in dissent. Among the fifty-six cases fully briefed and argued before the Court this past term, there were 6–3 splits between the Republican and Democratic appointees in thirteen rulings, compared with six last term.
To some observers, the fact that the Court ruled against the Trump Administration in a few major opinions—including, it turned out, the birthright- citizenship case—was a reassuring affirmation of Roberts’s view that it operates outside the realm of politics. Trump’s theatrics fuelled this impression: his clumsy attempts to tip the balance obviously failed. William Baude, a law professor at the University of Chicago, argued in the Times that the Roberts Court was “one of the most independent” he could “imagine at this stage of the second Trump administration.” Yet the term was overwhelmingly favorable to the President, and, though the final rulings certainly matter, of equal importance is the Court’s choice of which cases to take up in the first place. Steve Vladeck, a law professor at Georgetown, pointed to the Court’s handling of Louisiana v. Callais, in which the conservative majority gutted portions of the Voting Rights Act. Vladeck noted that the Court could have treated the case—involving Louisiana’s creation of a majority-Black voting district—as a smaller dispute, but instead it ordered the parties involved to re-argue the case as a broad test of the constitutionality of weighing race when redistricting. Vladeck said, “A big theme of this term is all these times when the Court could have looked like it was above politics but chose to lean in. This is the one institution left in the country that had a chance to say, ‘We have long-term principles’—and instead it got swept up in the political moment.”
Roberts has offered the occasional courteous rebuke to the President’s public trashing of the judicial branch. In 2018, after Trump dismissed a district-court judge who’d rejected one of his asylum policies as an “Obama judge,” Roberts declared, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Even those lofty, carefully considered remarks rankled Trump. At the Easter lunch that year, he said, “ ‘There is no Republican judge and there is no Democrat judge,’ a certain person says. And I say you’ve lost all credibility when you say that.”
For a man like Roberts, to whom the label “institutionalist” attaches like an epithet in the Odyssey, perhaps the only thing worse than Trump’s excoriation of the Justices is his gratitude when they do what he wants. In March, 2025, Roberts was present when Trump gave the annual Presidential address to Congress; afterward, Trump patted the Chief Justice on the shoulder and said, “Thank you again—won’t forget.” To many people, this sounded like an acknowledgment of Trump v. United States, the remarkably capacious 2024 ruling that granted Presidents immunity from prosecution for official acts. More immediately, the opinion saved Trump from facing trial for interfering in the 2020 election. Roberts had written the opinion for a 6–3 majority. J. Michael Luttig, a retired federal judge and a conservative, was close to Roberts for many years—he was a groomsman at his wedding—but has since become sharply critical of him. Luttig told me that he regards the immunity decision as “one of the two or three worst cases in all of American history, if not the single worst, because of the structural damage that it did to the Constitution and the separation of powers.” On Truth Social, Trump blamed “sleazebag ‘journalists’ ” for suggesting that his comment to Roberts was related to the immunity decision. He said that he’d just been thanking Roberts for swearing him in at his second Inauguration. Nobody who knows Roberts thinks that he could have found the gesture anything other than embarrassing.
Roberts, with his country-club equanimity, can seem like a man out of time—maddeningly or reassuringly, depending on your perspective. Even as a septuagenarian who peers at lawyers over reading glasses, he projects boyishness. He has the same modest swoop of a forelock that he’s had since his confirmation hearings. (A longtime Supreme Court sketch artist told me that Roberts’s bland good looks and buttoned-down comportment make him challenging to draw.) Roberts has called himself a “dinosaur” when it comes to A.I., and he’s never stopped writing opinions by hand. He still likes to boast about how collegial the Court is, though lately he’s had to temper those claims: in a speech at Rice University this past March, the best he could muster was “We’re not as much at each other’s throats as you might think.” Back in the nineties, both Democrats and Republicans loved to praise the unlikely friendship of the (liberal, feminist) Justice Ruth Bader Ginsburg and the (conservative, originalist) Justice Antonin Scalia. If such a friendship exists on the Court today, there’s no evidence of it.
In oral arguments, Roberts is generally unruffled. He takes up less airtime than most other Justices and seems less aggravated and indignant than the most aggravated and indignant among them—Samuel Alito for the conservatives, Jackson for the liberals. (An analysis by The Hill found that Jackson had the highest spoken-word count this past term, at more than seventy-five thousand, whereas Roberts was at about twenty thousand, ahead only of Clarence Thomas, who until recent years barely spoke from the bench.) Robert’s harshest interjections—and they aren’t that harsh—come when he reminds a colleague not to interrupt a lawyer or another Justice.
Still, it must be confounding to have Roberts’s job these days. In one sense, he’s been getting so much of what he has long believed in: the weakening of the administrative state, the enlargement of Presidential power, and the rollback of affirmative action and of voting-rights protections for minorities, which he thinks our society no longer needs. (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he famously wrote in 2007.) These are goals he’s sought since he worked in the Reagan White House. The string of conservative victories must be one reason that, as he deadpanned to an audience in Buffalo last year, he has no plans to retire: “I’m going out feet first.” This is one point on which the young Roberts and the current one do not concur—in a 1983 memo to Reagan’s White House counsel, Fred Fielding, Roberts noted that the Framers had adopted life tenure for federal judges, including those on the Supreme Court, “at a time when people simply did not live as long,” adding, “A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace.” Roberts, then twenty-seven, suggested term limits of about fifteen years for federal judges, to insure that they’d “not lose all touch with reality.” In Buffalo, Roberts said that he’d entrusted two friends to tell him if it was “time to go,” but added that he felt “pretty healthy” and that it was “exciting to get up every morning and go into work.”
His workplace is trickier than it used to be, though. Although his conservative flank has a lock on power, Roberts himself has less sway than ever over an increasingly fractious Court. Notably, the Chief Justice has less room for the cagey maneuvering, including narrowing the scope of decisions, that he’s often used to build consensus, as with a 2012 opinion that brokered a compromise on the Affordable Care Act by characterizing its insurance mandate as a mere tax. In 2018, Roberts told an audience at the University of Minnesota that “you can try to get as many people on board as you can” by keeping decisions narrow, and by only deciding “what is absolutely necessary to be decided.” But today’s Court often divides along stark ideological lines, and the liberals often sound truly distraught in their dissents. Jackson, describing the majority’s decision in the Presidential-immunity case, invoked “a five-alarm fire that threatens to consume democratic self-governance.” Kagan wrote an impassioned dissent to the Court’s 6–3 decision in the Louisiana-redistricting case. Opting to read passages of her opinion aloud from the bench, for impact, Kagan repeated “I dissent” like a chant as Roberts and Alito—whom Roberts had chosen to write the opinion—stared straight ahead. Kagan spoke of “the majority’s now completed demolition of the Voting Rights Act,” a law “born of the literal blood of Union soldiers and civil-rights marchers.”
During oral arguments, Sotomayor and Jackson, in particular, are seldom shy about articulating what they see as the existential stakes of the Court’s decisions. In a case this past term involving a policy that would allow the government to turn away asylum seekers at the Mexican border without first hearing their claims, Sotomayor twice cited the story of the M.S. St. Louis, a ship carrying Jewish refugees from Nazi Germany which the U.S. refused to allow to dock in 1939. “The majority of those people were shipped back or had to go back from where they came and were killed,” Sotomayor told the lawyer arguing for the policy. “That’s what we’re doing here—isn’t it?” In June, when the Court ruled, 6–3, in favor of the policy, Sotomayor read part of her dissent from the bench. Alito, who’d delivered the majority opinion, grew so annoyed that he offered a testy remonstrance. “There is much that I would have added to my bench statement, had I known there would be a dissent read,” he began. (A Court spokesperson later acknowledged “a misunderstanding on Justice Alito’s part”—he’d in fact been informed in advance of Sotomayor’s plan.) In 2024, Sotomayor told an audience at Harvard, “There are days that I’ve come to my office after an announcement of a case and closed my door and cried.” When Kagan was asked, at a separate event, about Sotomayor’s admission, she said, “I’m not much of a crier, myself. . . . I’m more of a wall-slammer.” (At a more recent appearance, in July, Kagan sounded a conciliatory note, saying, “Is this Court the kind of puppet for the current Administration? I think definitely not.”)
Vladeck, the Georgetown law professor, said that the two-year period before Barrett replaced Ginsburg, firmly tipping the Court’s balance, was the high point of Roberts’s ability to work out compromises: “He will never be in more control than he was between 2018 and 2020, when he was the median on everything.” Ironically, the firmly conservative majority has watered down Roberts’s power. This became especially clear in 2022, when Roberts tried to find a middle way in Dobbs v. Jackson Women’s Health, which overturned the constitutional right to abortion. When the Justices met for a final vote on whether they’d take the case, Roberts, Barrett, and the three liberals voted to turn it away, according to reporting by Adam Liptak and Jodi Kantor, of the Times. But the Court requires only four Justices to grant a case, and Brett Kavanaugh, whom Roberts had hoped would back his strategy of prudent avoidance, wouldn’t go along. Roberts ended up writing a concurrence, arguing for a “more measured course” in which the Court would uphold a Mississippi ban on abortions after fifteen weeks and toss out the long-standing rule that abortion was legal until a fetus was viable, but stop short of discarding Roe v. Wade altogether. He was following, he wrote, “a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” But the liberals were having none of it, and the conservatives wanted to end abortion immediately. “In the aftermath of Dobbs, he was the proverbial man without a country,” Luttig said.
During the first Trump Administration, Roberts’s position as tiebreaker sometimes allowed him to adopt a professorial tone, offering critical notes on the government’s legal strategies. In two 5–4 opinions invalidating Administration actions, he gave implicit advice on how the government might have pursued its aims differently. In one case, the Administration wanted to place a citizenship question on census forms, claiming that this would somehow help protect minorities’ voting rights. (Opponents said that the true intent was to scare immigrants away from filling out the form, and, thus, from being counted.) Roberts called the government’s explanation “contrived,” suggesting that it would have found success had it been more forthright. In a second case, Roberts rejected “post-hoc rationalizations” that the government had given for invalidating the DACA program, which allows some immigrants who came to the country illegally as children to avoid deportation. Benjamin Eidelson, a professor at Harvard Law School, told me that Roberts, to his credit, was trying to make the Administration more accountable for its controversial agenda. But it’s also possible that Roberts had found a clever way to deflect some explosive cases; if so, that leverage is gone—the current Administration is too emboldened to engage in pretenses. “When the Court struck down big policies in Trump’s first term, it was because the Administration had concealed or obscured from the public what was really going on,” Eidelson explained. “In both the census case and the DACA case, the Chief Justice’s theme was ‘You can do this if you want, but you have to own the choice and pay the political price.’ Now the Administration is just saying the quiet part out loud.”
It takes a determinedly selective eye not to see the increasingly open divisions among the Justices. Some of them have been speaking publicly about their chagrin with the Court, and with one another, in ways they rarely would have earlier in Roberts’s tenure—even though that surely displeases him. “This is a very careful guy,” David Leebron, a friend of Roberts’s from their law-school days, at Harvard, told me. “He’s a person who is not going to say anything he shouldn’t say.” Days before Joe Biden’s Inauguration, an upside-down American flag—a symbol of the movement that falsely claims the election was stolen from Trump—was raised outside Alito’s home, in Alexandria, Virginia. (Alito blamed the display on his wife.) This past April, Thomas gave a speech at the University of Texas, Austin, in which he criticized American progressivism for, among other things, suggesting that rights could be granted by governments; in Thomas’s view, rights are bestowed by God. (He also said that “Stalin, Hitler, Mussolini, and Mao all were intertwined with the rise of progressivism.”) And if Alito’s wife, Martha-Ann, minors in election conspiracies, Thomas’s wife, Ginni, majors in it, having explicitly urged lawmakers in two states to overturn Biden’s election.
In April, at the University of Kansas, Sotomayor sharply criticized an unnamed “colleague”—clearly Kavanaugh—for his concurrence in a September ruling that permitted ICE agents doing immigration-status checks to take into account what they presume to be a person’s ethnicity. “There are some people who can’t understand our experiences, even when you tell them,” Sotomayor said, during an onstage conversation with the appellate-court judge Mary H. Murguia and her twin sister, Janet, the head of a Latino civil-rights organization. “I had a colleague in that case who wrote, you know, ‘These are only temporary stops.’ This is from a man whose parents were professionals and probably doesn’t really know any person who works by the hour.” Sotomayor later apologized for making “inappropriate” comments. (She got along with nearly all her colleagues, she said at a different law school event that month, in part because she strove not to “define them by their worst ideas.”)
Meanwhile, in a speech at Yale, Jackson delivered a frank critique of the Court’s dependence on the emergency docket. A President, in an emergency application to the Court, might argue that he was being irreparably harmed by a lower court’s ruling against one of his executive orders, but she found this hyperbolic—he might be “harmed in an abstract way, by not doing what he wants to do,” but that hardly mattered if “what he wants to do is illegal.” She likened some of the Court’s brief, unsigned opinions to mere “scratch-paper musings,” adding that certain ones came across as “utterly irrational.” To issue “important decisions in such a cursory manner disrespects not only the people whose lives are upended by the rulings but also the public,” she said. Whereas Kavanaugh and Alito have defended the Court’s use of the emergency docket as the only way to handle all the pressing cases before it—Kavanaugh prefers the bureaucratic term “interim docket”—Jackson said that she’d “adamantly reject” any attempt to “normalize” the docket.
Stephen Wermiel, who covered the Court for the Wall Street Journal and is a law professor emeritus at American University, told me that Jackson’s speech was highly unusual: “The Court does not have a tradition of airing its dirty linen in public.”
It’s true that, as Roberts has said over the years, the nine Justices are bonded by the singularity of their work: they are the only people in the world doing precisely what they do. And they have certain rituals to maintain comity. Before oral arguments, they shake one another’s hands, a tradition stretching back to the nineteenth century. “It’s a small thing, perhaps,” Roberts said in a 2018 speech, but an important reminder that “we do not serve one party or one interest.” They eat lunch together on each argument and conference day, and Roberts enforces a rule that they must not talk about work. Instead, they chat about baseball, movies, grandchildren. If it’s someone’s birthday, Roberts brings in a bottle of wine for a toast.
Still, given the two unprecedented leaks in the past four years—drafts of the Dobbs opinion and of the confidential memos behind a seminal 2016 emergency-docket opinion, which Kantor and Liptak reported on recently in the Times—the atmosphere must sometimes be tense. (An awkward internal investigation of the Dobbs leak reached no evident resolution.) Justin Driver, a Yale law professor who clerked for the former Justice Stephen Breyer, said, “These leaks are painful for anyone who cares about the reputation of the Court.” Driver remembered Roberts gathering the clerks in a room to talk about the importance of confidentiality: “It wasn’t a stern talking-to, but it was very, very clear—you do not talk about what is happening here.” On the right, commentators see the leaks as part of a campaign to delegitimize the Court, and Roberts in particular. Fox News’s main response to the Times’ shadow-docket scoop—which showed that Roberts had moved aggressively to quash President Barack Obama’s signature environmental initiative, the Clean Power Plan—was to run an online op-ed, by the conservative legal scholar John Yoo, titled “The Left’s War on the Supreme Court Just Hit a Terrifying New Low.” Wermiel found this framing highly selective. “We don’t know who leaked this material,” he said. “But, even if you assume that conservative critics are right—that a liberal-leaning clerk was trying to undermine Roberts’s credibility—I don’t think it even comes close to Trump’s efforts to humiliate and denigrate the Court and its Justices.”
People familiar with the Court’s inner workings told me that new ways of conducting business might also be fraying nerves. Until a decade ago, the shadow docket was used only occasionally, mainly for true emergency applications—such as capital cases in which individuals faced imminent execution. Now it’s the venue for all kinds of substantive statutory and even constitutional matters, from immigration to election law, in large part because the Trump Administration has made such aggressive use of it—constantly filing for “emergency” relief to vanquish lower-court rulings that impede its policies. A former clerk said, “More of those decisions are essentially battles of memos, rather than human processes where the clerks talk, and then the Justices talk, and there are multiple drafts of opinions. It’s much more impersonal, and it kind of crowds out any sense of compromise or engagement—of mutual understanding.” Shadow-docket petitions now pour in year-round, including in July and August—months when the Justices once had little, if any, Court business to attend to, and could enjoy speaking gigs in Rome or London, or work on their memoirs or children’s books. Today, Driver said, the Justices feel compelled to keep “interacting with each other” during the lull.
Roberts himself probably laments this change. He likes to paraphrase a quip by Justice Louis Brandeis, who said that he could do twelve months’ worth of Court work in ten months, but not in twelve. “We work at very close quarters on very important issues, on very sensitive issues,” Roberts said at a public appearance last year. “And we do need a little break from each other.” Some Justices socialize with one another over the summer, he added, but, as for himself, “I’m a—I think I’ve got the group right—Four Seasons fan, and my approach is ‘See You in September.’ ” (He got the group wrong—the song was recorded by both the Tempos and the Happenings.)
In another drain on the Justices’ energy, oral arguments have become notably longer in recent years. During the pandemic, the Justices conducted sessions over the phone, and they adopted a system in which Roberts called on each of them to speak. When the Justices returned to the courtroom, Roberts partially retained this format. A free-for-all period—in which any of the nine can jump in to ask questions of the lawyers arguing the case—is followed by Roberts calling on each Justice, in order of seniority, to ask any remaining questions. Arguments now stretch out to two hours or more; an hour had previously been the standard. (At an appearance in May, Alito complained that there was currently “too much speechifying” on the Court. Roberts has said that he’ll be looking into the matter this summer.) Michael Dorf, a constitutional-law scholar at Cornell, told me, “The new format is better, if for no other reason than that the old format just didn’t allocate enough time in complicated cases.” But, as the former clerk told me, it “probably also tests the Justices’ patience with one another, because they’re all sitting there for so long—it seems like kind of a miserable experience sometimes. Especially given that some of them really talk a lot. I can just imagine how much eye-rolling, actual or mental, the others must be doing.”
After Trump left the Court on April 1st, the oral arguments went on for about another hour. The Justices’ questioning was thorough, historically grounded, and fairly subdued—the President probably would have found it tough going had he stuck around. But he no doubt enjoyed seeing his Solicitor General, D. John Sauer, whaling on birthright citizenship in his opening arguments. Sauer, a Harvard Law graduate who clerked for Scalia—and proved his worth to Trump by successfully arguing the Presidential-immunity case—speaks fast, in a distinctively raspy voice. As Trump looked on, Sauer ominously declared that America’s guarantee of citizenship to babies born here had “spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades.” This warning about “birth tourism” echoed one of Trump’s favored talking points, though there’s little data indicating that such births occur in significant numbers, and U.S. law already forbids obtaining a tourist visa specifically for the purpose of giving birth here.
Even before a conservative Court, Sauer faced a daunting challenge, because the citizenship clause of the Fourteenth Amendment is extremely straightforward: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” (There are a few recognized exceptions to this rule, such as the children of diplomats.) You could dispute precisely what “subject to the jurisdiction thereof” meant—and Sauer did. You could also stress—and Sauer did—that the purpose of the amendment had been to grant citizenship to formerly enslaved people and their children after the Civil War. But in an “originalist” reading of the language—the preferred mode of modern conservatives, in which the Constitution’s meaning is fixed by the people who wrote it—the “all persons” phrasing would seem to be unambiguous. That is certainly how the Court reasoned in 1898, when it famously upheld birthright citizenship; in that case, Wong Kim Ark, the son of Chinese immigrants who were living in San Francisco when he was born, brought suit when his citizenship was challenged after the passage of the Chinese Exclusion Act.
Roberts, as is his wont, said little during the oral arguments, but an exchange he had with Sauer was the most memorable of the day. When Sauer noted, “We’re in a new world now . . . where eight billion people are one plane ride away from having a child who’s a U.S. citizen,” Roberts shot back, “Well, it’s a new world. It’s the same Constitution.” This was followed by the kind of nervous laughter you hear when someone unexpected delivers a zinger.
The Chief Justice’s brio seemed telling. “The Roberts Court loves cases like this,” Peter Shane, of N.Y.U., said. “By occasionally resisting the President’s agenda when the law really doesn’t allow any cogent alternative to his losing, it allows them to say, ‘See, we’re not ideologically driven.’ ”
Rogers Smith, a political scientist and a professor emeritus at the University of Pennsylvania who co-authored a book about the citizenship clause, said, “Roberts is glad to rule against the Trump Administration when he can to help bolster the image of judicial impartiality. He will do it in cases where it does not threaten the efforts to restore what he thinks is a correct conservative understanding of the Constitution. In the birthright-citizenship case in particular, the Court benefits from the fact that the Trump Administration is probably less concerned about whether it wins the case than it is about the political benefits of bringing the case.” (The MAGA base cheers deportations, legal or not.)
In the end, Roberts wrote a strong opinion for the majority. He argued that the English common-law understanding of birthright citizenship—originally known as jus soli, or “right of the soil”—had “crossed the Atlantic with the colonists” and been “adopted with little fanfare after the Revolution” for a “Nation of immigrants.” Not only was the “succinct language” of the Fourteenth Amendment unequivocal; so was the Court’s ruling in the Wong Kim Ark case.
The biggest shock was Roberts’s failure to bring more of the conservatives on board. Alito and Thomas had been expected to side with the Administration, but it had seemed possible for Roberts to forge an alliance with all the other Justices. In the end, the vote was 6–3, but with a major caveat. Barrett joined Roberts and the liberals in full. Gorsuch joined the conservatives in full—a surprise. Kavanaugh agreed that Trump’s executive order should be overturned but didn’t agree that it was unconstitutional. Instead, he concluded that Trump’s order had violated a 1952 congressional statute upholding the citizenship of all babies born on U.S. soil. In a separate opinion, Kavanaugh pointedly noted that Congress could amend or override that law. Samuel Erman, a law professor at the University of Michigan, told me, “It feels like this could have been an easy win—just convince a couple more of your conservative colleagues to uphold a very firmly established constitutional interpretation that is overwhelmingly consistent with text and history. That Roberts couldn’t—well, it doesn’t seem like a Court that is marching to his drumbeat.”
Several legal scholars I spoke to said conservatives should be pleased that a challenge to birthright citizenship had made it to the Supreme Court at all. Tellingly, some of the leading opponents of the citizenship guarantee weren’t as let down by the result as they might have been. John Eastman told me later that he was “disappointed, of course,” but added, “The fact that the ruling was 5–4 on the constitutional issue strongly put to rest any claim that this was not a serious constitutional argument.” Vice-President J. D. Vance told Fox News that the division in the Court’s ruling was a “big silver lining,” noting, “A lot of legal experts expected this case to go the wrong direction by seven to two, or even eight to one.” Birthright citizenship was now “hanging by a thread.” On August 6th, Trump signed two executive orders aimed at blocking citizenship for certain people born here, such as those whose parents belong to a “Foreign Terrorist Organization.”
Vladeck told me the case confirms that Roberts “can’t build consensus” anymore. “From the perspective of being able to steer the Court out of a political thicket, this term is pretty emphatic proof that he can’t, even if he wanted to,” Vladeck said. “And I’m not sure that he wants to.”
On May 6th, a week after the Court announced its decision in Louisiana v. Callais, triggering immediate efforts by Republicans in Southern states to break up majority-Black voting districts, Roberts gave a speech in Hershey, Pennsylvania. He took the opportunity to lament how misunderstood the Court is. “People think we’re making policy decisions,” Roberts said, with evident frustration. “I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do.” He used to deliver this refrain in cheerier cadences. In 2005, when he was appointed to the Court by Bush, he immediately became Chief Justice. (The former Chief Justice, William Rehnquist, had just died, of thyroid cancer.) During the confirmation process, Roberts famously invoked a baseball metaphor: judges are like umpires, and their job is to call balls and strikes, not to pitch or bat. Yet does Roberts truly not care who wins the games? He emerged from a specific political culture, with a set of conservative policy preferences that go back to his college days. As Chief Justice, he has found ways to align his legal reasoning with those policy preferences in many, many cases.
A former clerk for another Justice told me that, when he was at the Court, he never really got Roberts’s “talk about balls and strikes.” Although Roberts believed in decorum and was “always polite,” he also “seemed pretty ideological—he has an agenda and knows how to move it forward.”
There are exceptions—most notably, the 2012 Obamacare ruling, when Roberts angered conservatives by finding a convoluted way to determine that the individual insurance mandate was constitutional. But he has unquestionably helped realize many long-held conservative goals—and he has been far more effective at this than congressional Republicans. Nor is the Roberts Court merely reflecting the people’s will: its jurisprudence is well to the right of the average American voter, according to a recent statistical analysis.
It may not be necessary to classify Roberts as either an ideologue or an institutionalist. Wermiel, the former American University law professor, told me, “I don’t think there needs to be an overarching theory that explains everything about him and the Court. I think he has some very strong, ideological views, and they take precedence. If he can try in a case to cool things off a bit and find consensus, and thinks that’s in the best interest of the institution, I think he does that, and he’s done it well on some occasions. But he certainly doesn’t do that all the time.”
In the eighties, Roberts spent several years in the Reagan Administration, first as a special assistant to the Attorney General, William French Smith, and then as an associate counsel to the President. During this period, he seems to have crystallized his thinking on many issues that later came before him on the Court. The Justice Department was then almost a think tank within the Administration, generating new arguments and initiatives for downsizing government, dismantling affirmative action, overturning abortion rights, supercharging the office of the Presidency, and unleashing free markets. Amanda Hollis-Brusky, a politics professor at Pomona College, has written that the Reagan Justice Department should be “described as revolutionary for the legacy it left behind in the form of ideas, and more importantly personnel, who were shaped by those ideas.” Many staffers went on to federal judgeships and to influential positions in the Federalist Society, the Heritage Foundation, and other right-leaning organizations, forming what is now known as the conservative legal movement. Two staffers, Alito and Roberts, eventually joined the Supreme Court.
Roberts, at the appearance in Buffalo, was asked if he planned to write a memoir, as several Justices have. He told his interlocutor, “I think my life is very interesting,” then paused for comic effect. “To me. I’m not sure it’s terribly interesting to anyone else.” (Of course, a Roberts memoir would be plenty interesting if he chronicled behind-the-scenes debates, but the Justices practice tomblike silence on those matters.) Roberts said that he’d found Clarence Thomas’s autobiography “absolutely gripping.” Thomas rose from rural poverty in Gullah-speaking Georgia to success at Yale Law School and beyond, with dramatic setbacks along the way—a drinking problem, Anita Hill’s accusations of sexual harassment. By comparison, Roberts has had a quiet ascent, climbing steadily through largely homogeneous milieus.
He was born in Buffalo in 1955, the second of four children in a family headed by John G. Roberts, Sr., an electrical engineer who became an executive at the Bethlehem Steel Corporation, and Rosemary Roberts, a homemaker active in charitable causes. (Roberts’s dad stayed at Bethlehem until 1985, then became the president and C.E.O. of Copperweld Steel.) When Roberts was ten, the family moved to northern Indiana, where Bethlehem Steel had just opened a plant. The Robertses settled in Long Beach, an upper-middle-class enclave with a summer-home feel on the shores of Lake Michigan. Roberts’s childhood and adolescence were serene. The Robertses were observant Catholics, and as a teen-ager John attended La Lumiere, a nearly all-white Catholic boys’ school. He excelled academically, joined the football and wrestling teams, played Peppermint Patty in a production of “You’re a Good Man, Charlie Brown,” and, as a junior, wrote a paper arguing against admitting girls to the school. (“I would prefer to discuss Shakespeare’s double entendre and the latus rectum of conic sections without a Blonde giggling and blushing behind me.”) Roberts’s biographer Joan Biskupic writes, “His classmates were later hard pressed to think of any true setback he may have experienced. He did lose the election for student government president, which some classmates chalked up to lingering resentment that he was first in nearly everything else.”
In 1973, the federal government ordered Bethlehem Steel, which had been the subject of an investigation that found entrenched racial bias at the company, to make substantial changes to the seniority system at one of its plants; the goal, the Times reported, was to “assure blacks better job opportunities.” John Roberts, Jr., surely took notice: a lawyer for the Department of Labor told the Times that the agreement was “the most far-reaching affirmative action decision” ever made.
That year, Roberts left for Harvard, entering as a sophomore because he had so many A.P. credits. He graduated summa cum laude, with a degree in history, then proceeded to Harvard Law, where he became managing editor of the Law Review. Other students at the law school—most of whom considered themselves liberals—clocked Roberts’s conservatism but found him smart, focussed, and amiable. Leebron, then the head of the Law Review (he later became president of Rice University), told me, “John and I had different political perspectives, but they certainly didn’t interfere with any sense of friendship then, or respect now.” He said that he related to Roberts because, “like me,” he was not “an overly gregarious, glad-handing kind of person.” Roberts was reliable, outwardly modest, a standout writer, and so hardworking that he hardly ever ventured into Boston, even though it was just three subway stops from Harvard Square. After a long day of studying, Roberts liked to drop by the local Baskin-Robbins; he ordered the same chocolate-chip sundae every time.
Roberts wore his hair a little shaggy, like the singer in a soft-rock band, but that was his only obvious concession to the mores of the day. In 2005, a former undergraduate classmate recalled to the Times that when Roberts was considering law schools he took Stanford off his list because the Stanford interviewer wasn’t wearing a tie.
After law school, Roberts landed two prestigious clerkships: the first with the appellate-court judge Henry Friendly, in New York, and the second with Rehnquist, who was on the Supreme Court but was not yet Chief Justice. Rehnquist, a staunch conservative, was known as the Lone Ranger for his habit of writing solitary dissents. “The two men offered Roberts two distinctive paths forward,” Biskupic writes. “Friendly was a model of intellectualism known for his modest judicial approach and respect for precedent. Rehnquist was brilliant but ideologically driven to reinterpret Court precedents in accordance with his conservative views.” Biskupic goes on, “When he became a judge himself, Roberts would identify in public statements with Judge Friendly’s neutral legal approach even as his own opinions aligned more with Rehnquist’s.”
After Reagan won the 1980 election, Rehnquist called the Attorney General’s office to say that a bright clerk of his wanted to work in government before entering private practice. Hearing the new President’s Inaugural Address, Roberts felt “a call to action,” he said in a speech years later. “I felt he was speaking directly to me.”
After leaving the Reagan Administration, Roberts joined the Washington firm Hogan … Hartson, where he began arguing cases before the Supreme Court, prevailing in most of them. One of his colleagues, the late E. Barrett Prettyman, was a prominent liberal lawyer who grew fond of Roberts even though they disagreed on most issues. Roberts was known for his meticulous preparation, which included visiting out-of-town courtrooms to gather intel on judges’ quirks and preferences. “I’ve never seen someone become so sure of his position,” Prettyman said, in a 1995 interview. “He psychs himself up and is really convinced of it, and he is able to get that feeling across to the judges so that they’re almost embarrassed to question him.” Prettyman noted in a 2012 interview that he and Roberts often joined a table in the firm’s cafeteria where “the high Pooh-Bahs” talked politics. “I had heard him expound on virtually everything, and it was clear to me that he was exactly what the Republicans believed,” Prettyman said.
For a few years, Roberts returned to government, serving as Principal Deputy Solicitor General in the George H. W. Bush Administration. Michael Astrue, then the general counsel to the Department of Health and Human Services, remembers Roberts as “the classic smart kid in the class who is not arrogant about it.” Astrue, who’d also been an associate counsel to Reagan and Bush, thinks it was formative for both him and Roberts that, “early in our careers, the client we represented day-to-day was the President of the United States. Coming out of that, I think, you probably have a stronger sense about what the prerogatives of the President are.”
In 1992, Roberts experienced what seems to have been the only major hiccup in his career: Bush appointed him to the D.C. Circuit, but the Senate didn’t get around to confirming him before the election of Bill Clinton that November. Roberts returned to private practice. In 2001, George W. Bush nominated him to the same position; within four years, he was Chief Justice. At his confirmation hearings for the Supreme Court, he had his opponents, including the civil-rights hero John Lewis, who said, “We cannot afford to elevate an individual to such a powerful lifetime position whose record demonstrates such a strong desire to reverse the hard-won civil-rights gains that so many of us sacrificed so much to achieve.” Still, Roberts had a golden-boy aura of inevitability, burnished by those baseball metaphors and his references to the “endless fields of Indiana stretching to the horizon, punctuated only by an isolated silo or a barn.” The confirmation vote was 78–22.
In 1996, after a long run as a well-connected, well-dressed bachelor, Roberts married Jane Sullivan, a corporate lawyer from an Irish Catholic family. Both were in their forties, and they adopted two babies, a boy and a girl. As a couple, Roberts and Jane have taken lessons in céilí, a form of Irish dancing; according to Newsweek, onlookers report that Robert is surprisingly “raucous” and “moves with great intensity and verve.” Their daughter, Josephine, attended a Catholic girls’ school in the Maryland suburbs, and then, like her father, went to Harvard; their son, John, attended a boarding school in Connecticut, and then the University of Miami. In July, Roberts and Jane sold their longtime home, a gray brick Colonial in Chevy Chase, Maryland, for $3.4 million; they have not said where they live now. They also own two vacation homes in Maine and reportedly have a time-share in a cottage in Ireland, where Roberts likes to golf. For years when Roberts lived in Chevy Chase, he often stopped at a Connecticut Avenue Starbucks en route to the Court. A driver stayed in the car as he headed inside for coffee, giving his name as John to the barista and chatting with customers. He offered one regular advice on which varsity sport the man’s son should pursue.
In 2007, Jane left the firm where she was a partner to become a high-salaried recruiter for law firms. Thanks to this and to Roberts’s own years in private practice, he is by far the wealthiest member of the Court; according to a 2024 analysis by Forbes, he has a net worth of twenty-five million dollars. His family background in the steel industry and his immersion in business-oriented Reaganite Republicanism have endowed him with a clear affinity for corporate interests. According to the Times’ Kantor and Liptak, Roberts “acted as a bulldozer” behind the scenes of the 2016 shadow-docket ruling that blocked the Clean Power Plan, which would have required U.S. electricity companies to reduce carbon emissions by a third within fifteen years. The Chief Justice’s urgent solicitude for the companies running coal-fired power plants—including about inconvenient costs they might bear while awaiting a decision from the Court—was striking. In an alarmed memo to other Justices, he cited the “on-going, cumulative, and irreversible harms that private parties are incurring each day under the rule.” Of the ongoing, cumulative, and irreversible harms to the environment, Roberts said nothing.
In a speech at his son’s ninth-grade graduation, in 2017, Roberts struck a note of noblesse oblige. He reminded the boys that they were privileged and urged them not to “act like it.” He explained, “When you get to your new school, walk up and introduce yourself to the person who is raking the leaves, shovelling the snow, or emptying the trash. Learn their name and call them by their name.” It was conventional, he noted, to wish new graduates luck. But he wished them some hardship, too: “From time to time, in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice.” Perhaps the idea occurred to Roberts because he’d experienced so little ill luck himself.
During Roberts’s confirmation process to become Chief Justice, the National Archives and the Ronald Reagan Presidential Library made available many memos that he had written as William French Smith’s special assistant and as a White House associate counsel. When some senators pressed him on the memos’ content, Roberts bristled. “You keep referring to what I supported,” he told Senator Russ Feingold. “I was a twenty-six-year-old staff lawyer. . . . I was not shaping Administration policy.”
Perhaps not, but Administration policy was shaping him. And the memos are markedly consistent with opinions he’s written as Chief Justice—on affirmative action, on the Voting Rights Act, on Presidential power. Even in his twenties, Roberts was clear and forceful in his writing, and self-assured both in his political judgments and in his clean-cut social conformity. Asked to weigh in on a proposed White House award to Michael Jackson—the singer had been warning teen-agers about the dangers of drunk driving—Roberts advised against it. Jackson could be seen as a role model, he wrote in an April, 1984, memo, only if “one wants the youth of America and the world sashaying around in garish sequined costumes, hair dripping with pomade, body shot full of female hormones.” (Somebody apparently overruled Roberts; Reagan honored the pop star at a ceremony the next month, declaring the occasion a “thriller.”)
In the White House counsel’s office, staff lawyers reviewed everything from speeches Reagan gave to bills he signed. Roberts’s boss, Fred Fielding, had been deputy counsel to President Richard Nixon; he was retained by the Trump Organization as Trump prepared to take office in 2016. In a 1984 Washington Post article, Roberts described his work in the office as “heady stuff” for a recent law-school graduate. When I spoke to Fielding, who still enjoys regular reunions with his White House counsel staff, including Roberts, he recalled, “John was very bright, very quick-witted, very personable,” with a “strong conservative philosophy.”
In 1982, Congress was set to renew portions of the Voting Rights Act, and it was considering including language that addressed not just racially discriminatory intent but also discriminatory effects. Roberts wrote talking points, speeches, and op-eds arguing against such a change. In a draft of an op-ed, he wrote, “If an effects test were enacted . . . election systems across the nation and at every level of government would be subject to litigation. The end result could be massive restructuring to achieve proportional representation—essentially a quota system for electoral politics.” Congress did amend Section 2 of the act to include discriminatory effects; the legislation did not require racially proportional representation. As Ari Berman, a journalist who has written on this history, notes, “The Reagan administration lost the battle over Section 2,” but, once Roberts was on the Court, conservatives began winning “the larger war over reshaping the country’s civil rights laws.”
As Chief Justice, Roberts authored an opinion, in Shelby County v. Holder (2013), that dismantled a crucial enforcement mechanism of the Voting Rights Act. “Voting discrimination still exists,” Roberts acknowledged. But the act required nine states and certain localities with histories of voter suppression to obtain “preclearance” from the federal government before changing their voting laws, and this, he wrote, violated those states’ “equal sovereignty”—a concept not enumerated in the constitution. (Shelby County is in Alabama, one of the nine states.) Besides, he argued, the Voting Rights Act itself had sufficiently redressed racial discrimination to the point that such “stringent” measures were no longer needed. This argument elicited one of Ginsburg’s most memorable ripostes: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
David Tatel, a retired federal judge whose ruling Shelby reversed, notes in a memoir that the Court could have ruled narrowly, saying Congress hadn’t shown that preclearance was necessary in Shelby County specifically, but, “instead of that scalpel,” it “used a machete.” The effects were immediate. States that had been subject to preclearance, Tatel writes, “redrew district lines, tightened voter-ID requirements, purged voter rolls, canceled same-day registration, restricted early voting, and closed polling places—all in ways that made voting more difficult for minority voters than for others.”
This term, in Louisiana v. Callais, Roberts signed on to the majority opinion, written by Alito. Instead of holding that the voting district Louisiana legislators had generated, under court order, needed to be revised, the Court swept away the entire notion of discriminatory effects, just as Roberts had always wanted. The Voting Rights Act, Alito wrote, proscribed only “intentional racial discrimination.” Without smoking-gun evidence of racist intent, it will now be very hard to bring challenges under the act.
Roberts’s jurisprudence on race often reverts to a simplistic notion of color blindness, in which taking race into account—no matter the reason—is itself racial discrimination. “It is a sordid business, this divvying us up by race,” Roberts wrote in 2006, dissenting from a majority opinion stating that part of a Texas redistricting plan had violated the Voting Rights Act. In a 2007 case, Roberts, writing for the majority, struck down a Seattle school district’s program of assigning pupils to classrooms with a goal of racial diversity. He repeatedly cited Brown v. Board of Education, a case famously argued before the Court by Thurgood Marshall. Seattle’s desegregation effort was comparable to Jim Crow-era school segregation, Roberts argued: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.”
Yet the “very different reasons” are the crux of the matter. Wermiel, the American University law professor, considers the invocation of Brown to be the most offensive passage in Roberts’s body of opinions. “Marshall was fighting people who thought Black people weren’t deserving of equal treatment as human beings,” he explained. “Whatever you think of affirmative action, or of using race for pupil assignment, no one was attacking the human being-ness of white people! Nobody was treating them as second-class citizens, or suggesting that somehow they would feel stigmatized if race was a tiebreaker in pupil assignment. For somebody who’s such a history buff, that’s just so ahistorical.” Roberts’s writing about race suggests that America has fully transformed itself into a meritocracy that rewards all the strivers among us. It’s almost as if we were all the sons of steel executives from Long Beach, Indiana.
During Roberts’s time in the Reagan Administration, a new conception of government was firing up young conservative warriors in the Justice Department. It wasn’t just the President’s antipathy to the federal bureaucracy in general, and to independent agencies such as the Federal Trade Commission and the National Labor Relations Board in particular. It was the notion that the power of the Presidency needed strengthening. In the post-Watergate, post-Vietnam era, this thinking went, Congress had gone too far in constraining the executive branch with presumptuous reforms that aimed to secure greater accountability and transparency from the White House. In a memoir, William French Smith, Reagan’s Attorney General, listed many changes he despised, including “the so-called Ethics in Government Act,” the legislative veto, the War Powers resolution, and “restrictions on the president’s appointment and removal powers.” Smith wanted the Reagan Administration to push harder for “the concept of presidential power.” But the Justice Department, he wrote, “could at least take comfort in the fact that we constantly hammered away at this principle.”
Roberts did some of the hammering. In an article that he ghostwrote for Reagan, he argued that the Presidency was endowed with a kind of authority that other government branches were not. “Other than the Vice President with whom he runs, the President is the only official in our government elected through a process involving all the voters,” Roberts wrote. “Only the President can claim to speak for all the people.” In a 1983 memo for Fielding, Roberts mused, “The time is ripe to reconsider the Constitutional anomaly of independent agencies” and “bring them back within the executive branch”—even if “more timid souls” see this as too “provocative.”
In the fifties and sixties, conservatives had tended to be suspicious of an imperial Presidency. But that perspective shifted when they began to view expanded executive power as a means of curbing environmental and economic regulation, civil-rights enforcement, and the federal bureaucracy. John Dearborn, a political scientist at Vanderbilt, told me that, by the seventies, “you have the Republicans starting to realize that they can win the Presidency at a time when they’re not really competitive for winning Congress. So, somewhere along the line, they start to see that, in terms of their interest in changing regulation or controlling bureaucracy, the Presidency is a potentially useful vehicle.”
The conservative argument for a strong Presidency became known as the unitary-executive theory. Promoted by the Heritage Foundation and the Federalist Society, and by Smith and his successor, Ed Meese, it held that the President had the sole power to appoint, direct, and fire high-level federal officials. Amanda Hollis-Brusky, the Pomona professor, thinks that the unitary-executive theory has roots in Cold War anxieties—“the idea that we need to empower a strong Presidency to protect free markets and counter godless Communism.” Then, after Watergate, Hollis-Brusky said, “it’s like the crown is shattered, and you have people like Robert Bork and Antonin Scalia, who are besties, becoming figureheads who pick up the pieces and catalyze a movement to rebuild the Presidency.” She went on, “What it becomes is an excuse for the executive branch to ignore and circumvent—to engage in wars and military conflicts without consulting Congress or even reporting to it. It becomes a way for the U.S. to effectively have a monarch.”
Proponents of the unitary-executive theory also tend to be originalists, and many claim that their robust view of Presidential power was shared by the Founders. They point to the opening of Article II of the Constitution—“The executive Power shall be vested in a President of the United States”—and to the phrase, also in Article II, “he shall take Care that the Laws be faithfully executed.” They also cite a 1789 congressional debate during which James Madison said, “I think it absolutely necessary that the President should have the power of removing from office.” (His reasoning was complicated and, in fact, sounds skeptical of an overweening executive: “It will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct.”)
Many legal scholars regard these examples as slender reeds on which to build an entire theory of Presidential power. Andrea Katz, a law professor at Washington University, said, “To me, if we’re being originalist, ‘he shall take Care that the Laws be faithfully executed’ means a duty to follow Congress’s orders, not a power to interpret the laws as the President decides.” In a recent essay, Caleb Nelson, a law professor at the University of Virginia who is a former Thomas clerk and a leading originalist, wrote, “Article II vests the executive power in the President. But Congress is in charge of creating offices within the executive branch, and the Constitution does not give the President unilateral power to dictate who will fill those offices or what their authorities and duties will be.”
For many veterans of the Reagan Justice Department, though, the unitary-executive theory is an article of faith. Cass Sunstein, a Harvard law professor whose most recent book is about the separation of powers, worked in the Justice Department’s Office of Legal Counsel during Reagan’s first year, and remembers there being “overexcited clarity” about the truth of the theory. There was much discussion of two contradictory Supreme Court cases: Myers v. United States (1926) and Humphrey’s Executor v. United States (1935). In Myers, the Court ruled that the President had the authority to remove appointed officials without congressional approval. (The opinion was written by Chief Justice William Howard Taft, the only Justice who had also been President. Roberts said recently that, though he’d once thought of Taft as “just sort of some fat plutocrat,” he was “probably the most extraordinary public servant this country has ever had.”) In Humphrey’s Executor, the Court affirmed that Congress could create independent agencies, and that their independence was constitutionally protected.
In a recent Substack post, Sunstein recalled that he and many others at the Office of Legal Counsel believed “that Myers was right, a shining constitutional star, and that Humphrey’s Executor was wrong.” Sunstein, who no longer fully endorses the unitary-executive theory, wrote that he now sees a “classic process of group polarization,” explaining, “Our discussions with one another led us to be more unified, more confident, and more extreme in our commitment to a Unitary Executive.”
As Chief Justice, Roberts has given the theory teeth. Indeed, the Columbia University legal scholar Gillian Metzger has written that the Roberts Court has “an obsession” with executive power. In 2010, in one of several related opinions written by Roberts, the Court asserted the authority of Presidential appointees to remove lower-ranking agency officials at will. In 2020, it expanded the President’s reach even further, with Roberts writing that Trump could fire the director of the Consumer Financial Protection Bureau without cause. Roberts, echoing his remarks from the eighties, contended that “the Framers made the President the most democratic and politically accountable official in Government,” adding, “Only the President (along with the Vice President) is elected by the entire Nation.”
Then, in 2024, Roberts wrote a decision on executive power whose sweep surprised even people who had been closely following his jurisprudence. In Trump v. United States, Roberts, writing for a 6–3 majority, concluded that former Presidents were entitled to “absolute immunity” from criminal prosecution for any actions taken during their Presidency which were within their core constitutional authority (including pardons)—and to “at least presumptive immunity” for any action that could be construed as official. Anything less would hobble the Presidency and risk making politically motivated prosecutions of former Presidents “routine.” Roberts wrote, “The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.” The case in question, in which Trump was facing prosecution for allegedly interfering with the transfer of power after the 2020 election, was sent back to a lower court, which dismissed it, clearing the runway for Trump’s reëlection in 2024. But the future implications of Trump v. United States were bigger, as the dissenting Justices argued. When a President, Sotomayor wrote, “uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune, immune, immune.”
Roberts clearly thought that he’d written an opinion for the ages, and he may have been disappointed when Trump v. United States was not widely regarded that way. For one thing, he assigned himself the opinion—he does so only a few times each term—and wrote at length. He chided the three dissenters for striking “a tone of chilling doom” that was “wholly disproportionate.” According to reporting for CNN by Biskupic, he didn’t even try to bring the liberals aboard through compromise—it was a “hard-and-fast 6–3 vote” from the day the Justices first met in private about the case. Instead, Biskupic revealed, Roberts tried to persuade his colleagues “not to think about” Trump and “to look toward the future.” In his opinion, he wrote, “Unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies.” Barrett issued a partial concurrence that laid out important exceptions to blanket immunity. She wrote that, since “the Constitution, of course, does not authorize a President to seek or accept bribes,” the “Government may prosecute him if he does so,” and the prosecution would have to be allowed to look into his motives. Context mattered. Roberts didn’t incorporate such caveats. His opinion argues that courts, even when trying to determine whether a President’s act was official or unofficial, cannot inquire into motives.
Roberts did allow that a former President was prosecutable for private acts committed while he held office. The types of crimes weren’t spelled out, but imagine that a President, say, poisoned his estranged spouse and concealed the crime until after leaving the White House. Trump had argued that if a President wasn’t successfully impeached while in office there could be no criminal prosecution of him for anything. Roberts didn’t go that far, and some commentators hailed the opinion as a delicate compromise. In the National Review, the lawyer and conservative activist Carrie Campbell Severino praised Roberts for “balancing the commonsense notion that presidents are subject to liability for private actions with the constitutionally inescapable position that presidents must be able to exercise Article II power without fear of criminal liability.”
This assessment wasn’t universally shared among conservatives. Jack Goldsmith, a Harvard law professor who served in the George W. Bush Administration, warned that the opinion’s “maximalist” conception of executive power was a sword for future Presidents of both parties to wield against other branches of government. Stephen McAllister, a University of Kansas law professor and a former Thomas clerk who served as a U.S. Attorney in the first Trump Administration, told me, “There’s not a single provision in the Constitution that suggests immunity, frankly, for anybody. If you’re a true originalist, your only argument is ‘Well, the Framers all understood this to be the case, even though nobody ever said it, and even though nobody thought to put it in the Constitution.’ ”
This past term, Roberts finally got the chance to overturn the ninety-year precedent of Humphrey’s Executor. Trump v. Slaughter was brought by a Federal Trade Commissioner named Rebecca Kelly Slaughter, whom Trump had appointed to fill a Democratic seat on the Commission during his first stint in office and had fired without cause during his second. (By law, the F.T.C. must have both Democratic and Republican members, all of whom are nominated by the President and confirmed by the Senate.) The Court, in a 6–3 opinion written by Roberts, ruled that the President could dismiss the Commission’s appointees at will. Roberts’s opinion took no heed of the current President’s autocratic impulses. In a blog post, Eric Berger, a law professor at the University of Nebraska, argued that, although “consequentialist reasoning” should not “govern constitutional decision making,” it is “notable that the Court would extend to the President nearly unlimited control over previously independent agencies without saying a word about what the decision might do to our democratic order at this particular moment.” In another case this term, involving Trump’s firing of the Federal Reserve Board commissioner Lisa Cook for allegedly committing fraud on mortgage documents—she denies this—the Court carved out a single exception. It would simply be too disruptive to financial markets to allow such firings at the Federal Reserve Board. (On August 5th, the White House initiated a fresh campaign against Cook, demanding that she answer questions about the fraud accusations within three weeks.)
Trump was thrilled with the Slaughter decision. On Truth Social, he posted, “It is such an Honor to be the sitting President who won this Historic and Unprecedented Ruling, one of the most important ever given with respect to Presidential Powers.” Although Roberts is presumably gratified, too, history’s little joke is that the President currently enjoying this generous new interpretation of his powers is surely not the mannerly, norm-abiding Republican Roberts had in mind decades ago. Trump, a vengeful chaos agent, has taken the Court’s rulings on executive power as a license to obliterate entire departments, gut the federal workforce, fire officials at independent agencies designed to be insulated from political pressure, and treat the D.O.J. as his personal law firm and police force.
Have these tumultuous real-world consequences unnerved Roberts? Perhaps not. Michael Luttig said, of the Presidential-immunity case, “There is no evidence whatsoever that the Chief Justice regrets that abhorrent decision.” But Nelson, the originalist at the University of Virginia, wrote in his recent essay that “more than one member” of the First Congress had “warned against interpreting the Constitution in the expectation that all Presidents would have the sterling character of George Washington.” One of Roberts’s former government colleagues told me, “John and I came of age as lawyers in a time when you just couldn’t imagine a lot of the stuff that happens today. He would never acknowledge it, but I think a lot of this stuff is painful for him.”
But Michael Dorf, at Cornell, told me that, given how relentless Trump has been in exerting Presidential power, it’s naïve to focus on the occasional times when the Court has reined him in. “If an Administration is really pushing the edge,” Dorf said, its record of wins and losses means something very different than it would for “a normal Administration.”
In 2023, the Times reporter Linda Greenhouse pointed out how much of “the robust conservative wish list that greeted the new chief justice 18 years ago” had been fulfilled: “Overturn Roe v. Wade. Reinterpret the Second Amendment to make private gun ownership a constitutional right. Eliminate race-based affirmative action in university admissions. Elevate the place of religion across the legal landscape. Curb the regulatory power of federal agencies.” In the three years since, the Court has delivered even more wins for the movement—rulings undercutting the rights of trans people and immigrants, vitiating the Voting Rights Act, and expanding Presidential power. At the July event where Kagan pushed back against the notion that the Court had been a rubber stamp for Trump, she also said, “Is this Court very conservative? Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes.”
As it does for many people, the U.S. probably feels a little rougher around the edges for John Roberts than it used to—harsher, less content, more polarized. Armed National Guard troops remain stationed around Washington, D.C., a year after they were deployed. Some of Roberts’s Chevy Chase neighbors were no doubt fired from the federal government. Since the storming of the U.S. Capitol, on January 6, 2021, and a 2022 incident in which an individual was arrested with a pistol and a knife outside Kavanaugh’s home, D.C. residents don’t spot the Justices around town as much, not even at Starbucks. When the Justices do venture out, though, they’re more likely to be approached—and criticized. In May, 2025, Roberts said, “It’s getting worse, though, in general, just because the work of the Court is getting a higher degree of publicity.” At a recent public appearance, when a woman stood up to ask him to speak more loudly, he joked nervously that he’d thought it “was a protest.”
Still, if you were Roberts, you might justifiably feel, in the summer of 2026, that, along with your intelligence and ambition, your consistency had paid off. You might feel that you’d turned back the clock to pretty much where you wanted it. Whatever might be happening on the streets of American cities—or whatever the current occupant of the Oval Office might be like—constitutional interpretation was in safe hands at the highest court in the land. America was celebrating a birthday milestone, the Happenings were singing “See You in September,” and nothing could really go wrong.
