John Roberts, party operative

Margaret Talbot has a refreshingly realist summary of John Roberts’s legacy, with none of the “3-3-3” bullshit or whatever the Court’s apologists are trying to sell the tourists these days. Again and again, he advances the same policies he’s been advocating since he was a Reagan functionary, whether or not the text of the Constitution of the statute passed by Congress (sometimes contrary to his explicit urging) is congruent:

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.

Along with hostility to voting rights, which may well lead to a major constitutional crisis in the 2026 midterms, Roberts’s career-long obsession has been with rendering the Constitution’s separation of powers unrecognizable by creating a dominant executive (offer void during Democratic administrations), and needless to say the Trump supermajority has allowed him to fully unleash his id:

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.’ ”

I will give the last word to known Trotskyist Michael Luttig:

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.” 

Trump v US — as Paul says, one of this most aptly names Supreme Court cases in history — will be the handiest way of capturing Roberts’s destructive legacy. Explaining why the methodical demolition of the VRA is so outrageous can be a little complicated, but “declaring the president above the law to shield Donald Trump from and consequences from 1/6 specifically” is an atrocity that is easily understood, and will look worse and worse the more unpopular and unhinged Trump gets.