Will John Roberts put the brakes on the Trump train?
President Donald Trump was less than two months into his second term in March when the chief justice of the United States publicly chastised him. Roberts took the unusual step of criticizing Trump’s call for impeachment of “crooked” lower-court judges who’d ruled against the administration.
“Impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts declared in a rare statement sent to reporters. The rebuke followed another public message Roberts issued weeks before Trump’s inauguration, warning against “dangerous” talk of defying court orders.
“Every Administration suffers defeats in the court system — sometimes in cases with major ramifications for executive or legislative power or other consequential topics,” the chief justice wrote.
Yet, eight months into Trump’s presidency and with the court’s new term opening Monday, the flurry of extraordinarily aggressive executive actions Trump has taken has met very little resistance from the Supreme Court.
Last week marked the 20th anniversary of Roberts’ appointment — by President George W. Bush — as chief justice. At age 70, Roberts may preside over the court for many more years. But critics say the court he oversees is doing little to rein in a president targeting political opponents for criminal prosecution, eliminating hundreds of thousands of federal workers without congressional input, and using funding halts to intimidate the country’s top universities. What’s more, many legal experts say, Roberts has actually emboldened Trump.
“The Supreme Court and the chief justice have given Americans zero reason to believe that they will slow this president in any way whatsoever,” said former 4th Circuit Court of Appeals Judge J. Michael Luttig, a George H.W. Bush appointee. “The Supreme Court has acquiesced in — if not given its imprimatur to — the president’s lawlessness.”
For nearly a decade, the Roberts court has often been dominated by Trump-related controversies. The justices refereed Trump’s most contentious policy moves during his first term in the White House, and even during the four years he was out of office, the court heard momentous appeals stemming from the criminal cases against him and from efforts to knock him off the 2024 ballot.
But many more Trump challenges await. When Roberts and the other eight justices return to the bench Monday after a busy summer recess, they will begin a term that will again be focused on Trump. In the coming months, the court will hear arguments on the centerpiece of Trump’s economic agenda — global tariffs — as well as his power to fire heads of regulatory agencies and members of the Federal Reserve. And other major challenges to Trump policies are waiting in the wings in the lower courts, likely to arrive before the justices soon.
Trump racks up wins at the court
So far this year, Trump has enjoyed an impressive winning streak in a series of emergency appeals to the high court involving administration policies. Of 25 such appeals ruled on by the justices since Jan. 20, the administration has won 21, notching short-term victories on bids to cancel federal grants, fire federal workers, oust President Joe Biden’s appointees from independent agencies and ship undocumented immigrants to countries they have no ties to.
But the court’s liberal justices and Roberts’ critics complain that most of those decisions — rendered on the high court’s emergency or “shadow” docket without full briefing and almost always without oral argument — contain little or no reasoning or explanation. The rulings have also irritated lower-court judges, who say they’re willing to follow Supreme Court direction but have trouble divining the meaning of what are often one- or two-paragraph decisions.
“It’s absolutely outrageous,” said Fred Wertheimer, a longtime campaign-finance and political reform advocate. “They have breached their public responsibility. They’re making, in essence, merits decisions and not explaining them for the public, not explaining them to lower-court judges.”
“I analogize the shadow docket to, essentially, rulings on the back of a napkin,” said former U.S. District Judge Nancy Gertner, a Clinton appointee. “I talk to district court judges all the time. District court judges are dealing with essentially an incoherent path. Decisions on the shadow docket, which no one ever anticipated would be precedential, are now being considered precedential.”
Did Roberts’ immunity ruling embolden Trump?
While Roberts has publicly cautioned against defiance of the court, many of the chief justice’s critics and even some allies say his July 2024 ruling on presidential immunity wound up emboldening Trump. The decision stemmed from the federal prosecution of Trump for trying to overturn the results of the 2020 election. The court’s majority opinion, which Roberts wrote, decreed that presidents, after they leave office, have broad immunity from criminal prosecution based on their official acts.
“I’m immune from all of the stuff that they charged me with,” Trump declared the following month, eliding much of the nuance in the decision.
Weeks after Trump was sworn in for a second time, he posted on social media: “He who saves his Country does not violate any Law.”
One of Trump’s nemeses on Capitol Hill, California Sen. Adam Schiff, said Trump’s sense that he’s legally untouchable appears directly linked to Roberts’ immunity ruling.
“I think the president feels, on the basis of that decision, that he will never be held accountable for anything, and, therefore, he can take billions in crypto money. He can accept a $400 million dollar aircraft from Qatar. He can engage in all kinds of corrupt acts and corrupt abuses of power and he’ll never be held accountable,” Schiff said. “I think when this chapter is written, that the name Roberts will be side by side with the name Trump when it comes to what led to the degradation of our democracy.”
Some judges and lawyers, who were granted anonymity to speak candidly about the sensitive topic, remain puzzled by Roberts’ decision.
“I don’t understand what Roberts thought he was doing when he did it,” said one federal judge. The judge said Roberts seemed to view the decision as an interim one that the court would revisit, although the issue became largely moot after Trump won the presidency again and the Justice Department dropped the criminal case related to the events of Jan. 6, 2021.
“I don’t think he … meant [it] to be for all time,” the judge said. “I think a lot of people think that was for all time, and I don’t think this was ever intended to be that way.”
“On immunity, I still cannot believe that he wrote that,” said one longtime Roberts associate. “I’m still trying to figure out how he got there. I really just can’t digest that.”
Some legal experts said they think that, when the decision was being written last year, Roberts was expecting Biden to win the election, and the chief justice was trying to shut down the criminal charges that Justice Department special prosecutors and a Georgia district attorney had filed against Trump. Others speculate that Roberts may have been anticipating a Trump victory and was seeking to head off the prospect of Trump launching a prosecution of Biden.
“Trump was, at that time, threatening that if he got into office, he would prosecute Biden,” said American University law professor Stephern Wermiel, a Supreme Court historian. “The court could have been motivated by that, not just by the prosecutions of Trump.”
Critics of Roberts’ immunity ruling have taken particular aim at one aspect of it: the chief justice’s declaration that a president’s directions to the Justice Department can never give rise to a criminal prosecution of that president. Those sorts of sweeping holdings may be helping fuel Trump’s sense of impunity as he shatters longstanding norms by calling for and publicly celebrating prosecution of his political opponents, like FBI Director James Comey.
“Biden will not be prosecuted because of that decision — but everyone else will,” said Gertner, calling Roberts’ immunity decision “an extraordinary miscalculation” and “a colossal mistake.”
Roberts and his court have occasionally checked Trump
While the Supreme Court has leaned strongly in Trump’s direction thus far during his second term, the president has not run the table.
In a series of rulings this spring, the justices restrained Trump’s drive to use a rarely invoked 18th century law, the Alien Enemies Act, to send hundreds of Venezuelan men to a high-security prison in El Salvador known for brutal treatment of inmates.
The high court’s initial foray into the issue in April overturned a Washington-based judge’s order barring such deportations nationwide, but made clear that those targeted for deportation under the law had to be given enough advance notice and access to lawyers to have a real chance to challenge their deportation in court. (The Trump administration did manage to fly 130 Venezuelans to El Salvador at the outset of the operation despite a judge’s order that the deportees not leave U.S. control. Contempt proceedings related to that episode have been held up at an appeals court for months.)
Less than two weeks later, the justices blocked a second wave of Alien Enemies Act deportations attempted by the administration. Trump’s use of the law to expel alleged gang members from the U.S. has been on hold at the high court’s insistence for nearly six months.
In another highly publicized case, the Supreme Court also refused the Trump administration’s bid to overturn a lower-court order requiring officials to seek the return of an undocumented immigrant from El Salvador. That immigrant, Kilmar Abrego Garcia, had been living in Maryland for more than a decade before he was abruptly deported to a Salvadoran prison despite an earlier immigration-court order barring him from being sent to his home country.
While the justices watered down the lower court’s order, their insistence that the Trump administration “facilitate” Abrego’s return to the U.S., clearly irritated Trump and other administration officials, who suggested publicly they would defy the high court’s directive. Ultimately, the administration brought Abrego back, but only after securing a criminal immigrant-smuggling indictment against him that remains pending.
Those high-profile deportation cases aren’t the only ones in recent months where Roberts offered some opposition to early Trump policy moves.
It didn’t get much attention at the time, but in April, Roberts split with his conservative colleagues in an emergency-docket case over blue states’ demand to restore $65 million in education grants cut off by the Trump administration.
The court’s other GOP appointees formed the majority and released a three-page explanation for their ruling. The Democratic appointees also detailed their positions, with Justice Elena Kagan writing two pages explaining her vote, and Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, weighing in with a 17-page dissent.
Roberts, sphinx-like, said nothing, beyond noting that he would have rejected the Trump administration’s emergency request.
While lower-court judges and many legal scholars are urging the court to do more to explain its emergency-docket rulings, some believe Roberts prefers for the court to say less in such cases. That’s because cases come to the court on the emergency docket in a preliminary posture, based on an incomplete record. If the justices publicly expound on the legal issues at such an early stage, they might prematurely commit themselves to a final judgment if the cases later return to the court for full briefing and arguments.
“I suspect that the chief very much has this view, that the court is concerned about lock-in, and really, with very rare exception, we have seen the court really refraining, at least as a court … from saying anything,” veteran Supreme Court lawyer Kannon Shanmugam said.
Is the Roberts court still his?
On two notable occasions during Trump’s first term, Roberts drove outcomes that blocked significant Trump policies.
In 2020, the chief justice sided with the court’s liberals in a 5-4 decision that rejected the Trump administration’s attempt to end President Barack Obama’s policy allowing hundreds of thousands of immigrants who entered the U.S. illegally as children to stay and work legally in the country — an initiative known as Deferred Action for Childhood Arrivals or DACA.
Roberts also joined the liberals in a 5-4 ruling the previous year that handed Trump a loss on his effort to add a citizenship question to the 2020 census.
However, Roberts’ ability to control the outcome of a case by joining the court’s liberals ended when liberal Justice Ruth Bader Ginsburg died in 2020 and Trump cemented a six-justice conservative majority by winning confirmation of Justice Amy Coney Barrett.
“The problem is he’s lost control of the court,” Gertner said.
Roberts’ diminished power was most evident in the court’s 2022 decision overturning the federal constitutional right to abortion after nearly 50 years. The chief justice said in a solo concurrence that he would have upheld the Mississippi law at issue, which banned most abortions after 15 weeks of pregnancy, while purporting to leave in place the decades old abortion-rights precedent, Roe v. Wade.
However, Roberts’ Republican-appointed colleagues insisted on toppling Roe.
“He prefers opinions, where possible, that have smaller ramifications,” William and Mary Law Professor Jonathan Adler said. “He wants each decision to be a ripple, not a tidal wave.”
Indeed, Roberts came to the court 20 years ago seeking to dial down the temperature, advocating for judicial minimalism — issuing narrow rulings whenever possible.
“If it’s not necessary to decide more to dispose of a case, then, in my view, it is necessary not to decide more,” he declared at his 2005 confirmation hearings.
Nonetheless, the court he has presided over has dictated major shifts in the law on gun rights, affirmative action, voting rights and abortion, usually with his endorsement.
Roberts’ stated penchant for incrementalism often seems out of place in an era of extreme political polarization, although it still sometimes carries the day on the more mundane cases the court takes up.
“I think he’s been successful only in the lower-profile cases in that regard,” Shanmugam observed. “You see less of that in the high-profile, constitutional … cases.”
That’s in part due to more conservative colleagues eager to see faster changes in the law. But Wermiel said Roberts’ initial strategy has proven ineffectual and almost archaic in an era of seemingly constant, high-stakes legal challenges to executive actions.
“We’re in this period of extraordinary tension around the court because of the heavy use of the shadow docket, because of the inactivity of Congress in asserting its own prerogatives to the president,” Wermiel said. “I don’t think we’ve ever seen anything like this. We’re in the 20th year of the Roberts court and there are two branches of government, not three. And the question is, who’s running the government: the executive branch or the judiciary? And that’s got to be uncomfortable for Roberts.”
Melanie Mason contributed to this report.
