How John Roberts Created the Anti-constitutional Monster Devouring Washington

Forgotten in the arc of John Roberts’s nearly two decades as chief justice of the United States is his role, behind the scenes, to herald the result in Citizens United v. Federal Election Commission. No, he didn’t write the ruling that ushered in our current era of corporations and billionaires buying the presidency of the United States and other offices. But he can be credited with moving the chess pieces that made that sweeping landmark, authored by Justice Anthony Kennedy, possible.

One version of the story finds Roberts so spooked by an unpublished dissenting opinion by outgoing justice David Souter that the chief moved heaven and earth so that that document would never see the light of day. In it, Souter, a Republican and a big defender of campaign finance laws, called out Roberts for twisting the Supreme Court’s own internal rules to arrive at a far-reaching outcome in an otherwise small-bore dispute—in this case, a decree that the First Amendment places no limits on so-called “independent” corporate and union expenditures in our elections.

That’s not the legal question the Supreme Court had been asked to decide. And so other versions of this palace intrigue find Souter pleading with Roberts, and the rest of the court, to not overrule prior precedents curbing the influence of money in politics—and to rehear the case so that those precedents could get a second look and a fresh round of briefing and argument. Souter got his parting gift: On the final day before the Supreme Court broke for its summer break in June 2009, Roberts announced that the case would be reargued at a later hearing. Immediately thereafter, as his last order of business that day, the chief also announced “with sadness that this is the last session in which our friend and colleague, Justice David Souter, will be on the bench with us.” Problem solved. By the next January, Citizens United would become the law of the land.

This is but one data point for how Roberts, more than any other politician in the United States, has set the stage for Donald Trump’s disruptive second presidency—one far more destructive than the first, and yet distinct in kind from any other in modern history in that the president truly feels unbound. And in advancing an extreme vision of presidential authority, he’s no longer ruling over Washington and the nation as a lone head of state. Instead, the executive power, which Article II of the Constitution vests in one president of the United States, has been freely shared with billionaire and mega-millionaire ruling partners, Elon Musk chief among them.

Trump’s Cabinet, the wealthiest in history, at least holds legitimacy in that its members, like Linda McMahon and Howard Lutnick, were approved by the Senate, as the founding document instructs. Not so Musk. The Tesla and SpaceX chief, who donated a quarter-billion dollars to Trump’s reelection effort and over time has received tens of billions in government contracts from a multitude of agencies, operated in a constitutional vacuum, largely unconstrained by law or rules of ethics. As the leader of the inaptly named Department of Government Efficiency, which is neither a congressionally approved department nor efficient by established metrics, Musk—who recently split with the president—was allowed to wield a breathtaking level of authority over the executive departments and other agencies he’s beholden to, above and beyond that of the Cabinet itself.

Much of this unchecked lawlessness is water under the bridge by now, as judges, save some exceptions, have been too slow to stop the bleeding or police abuses, whether that be funding cuts Congress never approved or shocks to the federal workforce. Sensing early on how this unholy alliance of money and power flew in the face of rules Roberts and his court have erected for “officers of the United States,” as spelled out in the constitutional text, a group of Democratic attorneys general cried foul in federal court: “Although our constitutional system was designed to prevent the abuses of an 18th-century monarch, the instruments of unchecked power are no less dangerous in the hands of a 21st-century tech baron.”

One can only wonder what Roberts thinks of a duly elected chief executive and an unelected de facto prime minister leading the charge on mass firings across federal agencies, dismantling decades-old departments, and impounding appropriations that by definition are already the law. Roberts’s own branch of government is not exempt from DOGE’s intrusions; judges, law clerks, and court employees have all been put on high alert over the Trump administration’s documented encroachment even on day-to-day court operations.

These breaches of the separation of powers, both real and imagined, and the anti-constitutional monster spreading its tentacles across Washington, would’ve horrified the Founders. But that’s yet another consequence of unlimited wealth corrupting our politics. Democracy gives way to an oligarchy; that, in turn, may buy you a quasi-monarchy with few guardrails. Roberts and the other justices responsible for Citizens United may well believe that “independent expenditures do not give rise to corruption or the appearance of corruption,” as they insisted at the time. The Trump-Musk reign of chaos has put that idea, fanciful then and now, to rest.

This corrupt bargain should haunt Roberts in other ways. During the presidential transition, as if anticipating the legal resistance to the incoming Trump administration, the chief saw the future when he dedicated his year-end report on the federal judiciary to the threats to their independence judges face day-to-day. The report, which doesn’t mention Trump by name, is nonetheless replete with not-so-veiled allusions to what the president and his supporters have visited upon judges since he took office—including threats of violence, intimidation, and disinformation about what individual court rulings mean or require. “These dangerous suggestions, however sporadic,” he wrote, “must be soundly rejected.”

Defiance, which has been a theme of the past six months, hasn’t abated. And that’s because one element Roberts didn’t foresee was that Trump wouldn’t be the only one with pitchforks out against judges. Musk, other administration officials, and far-right figures who have grown in influence on X and in the president’s circle have also joined this high-tech lynching, to borrow from Clarence Thomas. When an incensed Stephen Miller grossly misrepresented a Supreme Court ruling that urged the Trump administration to “facilitate” the release of Kilmar Abrego Garcia, a Maryland man who had been unlawfully sent back to a prison in his native El Salvador, that only set the stage for more defiance by the White House.

In that case, as in other politically charged cases, Trump has been on the losing side in the courts. And the more he loses, the fiercer his and his supporters’ attacks on judges get. Indeed, a Reuters investigation in May found that John J. McConnell Jr. and James Boasberg, chief judges of their respective federal districts in Rhode Island and the District of Columbia, are top of the list among federal judges “whose families have faced threats of violence or harassment after they ruled against the new Trump administration.”

Roberts has tried to turn down the heat to little effect. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts wrote in a statement in March as Boasberg phobia reached a fever pitch. “The normal appellate review process exists for that purpose.” The attacks didn’t relent. At a portrait unveiling in May for John D. Bates, a George W. Bush appointee and yet another veteran judge MAGA has viciously targeted for ruling against Trump, Roberts could be seen sitting next to Boasberg and other members of the judiciary in Washington—lending his presence and offering pleasantries in a roomful of judges at a moment many of them feel under siege.

As it happens, many of these same judges, collectively, presided over more than 1,000 prosecutions related to the January 6 insurrection at the Capitol. Then, as now, they’ve had to contend with an emboldened right-wing fever swamp, led by the president of the United States, that casts the rioters as political prisoners. The nation has Roberts to thank, in part, for this attempt to rewrite the history of the assault on our democracy: The chief led the way not only in granting Trump broad immunity over his actions and inactions on that day; he also shielded him from the insurrection clause of the 14th Amendment by blocking a bid by Colorado voters to bar him from the ballot. Had Roberts not maneuvered to defang that centerpiece of the post–Civil War amendments in this latter case, Trump might have been ousted from public life for good.

In the face of all this aiding and abetting, Roberts’s gestures and public comments in defense of judges come across as woefully insufficient. Worse, they mask his hand in paving the way for Trump’s worst excesses in just about every area of law and policy that matters to his administration.

Fresh on the public’s mind is the Supreme Court’s indefensible immunity decision, which effectively shut down a criminal trial accusing Trump of masterminding his disruption of the transfer of power. Roberts’s florid language in that ruling makes it plain that he believes the president deserves special treatment as the head of one branch of government, beyond the reach of the casual cruelty that everyone else faces in the criminal system.

Yet the longer-term import of Trump v. United States, as longtime scholars of executive power have observed, may be how the Trump administration is embracing it today. In Trump’s hands, the ruling isn’t just a shield from prosecution; it’s a weapon to decimate the federal workforce, to dismantle agencies Republicans and business interests have long disliked, and to fire independent watchdogs and regulators Congress has seen fit to protect from White House interference.

Indeed, the idea that Article II of the Constitution gives the president authority over every corner of the executive branch has long been a Roberts hobbyhorse, and the Trump administration is riding it everywhere it goes. When Trump unlawfully fired National Labor Relations Board member Gwynne Wilcox, the first time in the history of the labor board that had happened, the Justice Department relied on the immunity decision and others by Roberts to justify the dismissal. The president’s firing authority is “untouchable by Congress,” D. John Sauer, the solicitor general, told the Supreme Court in a legal brief. And so the chief went right along and, acting on his own, quickly allowed Wilcox’s firing to proceed. More than a month later, without bothering to hear oral arguments, his majority ignored nearly a century of precedent and gave Trump complete control over the NLRB’s leadership. “Today’s order,” Justice Elena Kagan wrote in dissent, “favors the president over our precedent.”

Carried to its logical end, Roberts’s jurisprudence bolstering an all-powerful and “energetic” president to do as he pleases spares no one: not the beloved Librarian of Congress (fired), not the transformative Consumer Financial Protection Bureau (fighting for its life), and certainly not the unlawfully renditioned migrants disappeared to a notorious El Salvador prison (still disappeared). In all these instances, the Trump administration can point to a constitutional ruling by Roberts for justification. Even the Trump-led purge of a government that is diverse, equitable, and inclusive, or part of its all-out war against Harvard University, can be traced back to Roberts’s blinkered thinking on race: “Eliminating racial discrimination means eliminating all of it.”

Trump’s Washington is Roberts’s Washington. And the greatest feat of the Supreme Court that bears their names may yet be the wholesale destruction of government as we know it. In one executive order that garnered little attention, Trump directed his agencies on a “review-and-repeal” rampage to get rid of rules of governance that have long been on the books. The source for this directive? Ten cherry-picked decisions, all but one of them issued by Roberts’s majority or supermajority—covering everything from affirmative action policies to environmental law to religion in public life—that the administration thinks should carry the day. It’s too early to tell where this slash-and-burn campaign will end up. But if nearly 20 years of Roberts have taught us anything, it is that once he rules, the nation is left to figure out how to fix what he has broken. If it can be fixed at all.

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