Let's grade John Roberts

At his [2005] swearing-in ceremony, the new chief justice spoke eloquently about the immense weight of the court’s duty to preserve the U.S. constitutional order. “What Daniel Webster termed ‘the miracle of our Constitution’ is not something that happens every generation,” Roberts said in his remarks. “But every generation in its turn must accept the responsibility of supporting and defending the Constitution, and bearing true faith and allegiance to it.”

“That is the oath that I just took,” he continued. “I will try to ensure, in the discharge of my responsibilities, that, with the help of my colleagues, I can pass on to my children’s generation a charter of self-government as strong and as vibrant as the one that Chief Justice Rehnquist passed on to us.”

  New Republic

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“Umpires don’t make the rules,” Roberts said, when describing his judicial approach at his 2005 confirmation hearings. “They apply them.” If Roberts is rarely depicted as a firebrand or a zealot, few would deny his unmistakable ideological tilt.

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The United States is less democratic, less self-governing, more dysfunctional, and more corrupt than it was 20 years ago, thanks in large part to the Supreme Court’s rulings. Many of its most important decisions—on campaign finance, on voting rights, on gerrymandering, and on the separation of powers—have left us less able to resolve political questions and issues than any previous generation has been.

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Public confidence in the Supreme Court as an institution has also collapsed. When Roberts was inaugurated, Gallup found in a September 2005 poll that 56 percent of Americans approved of the court’s job. In July this year, that number had dropped to 39 percent—the first sub-40 result in the survey’s history.

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Roberts shares much of the blame himself. Over the course of two decades, he has overseen an effort that has steadily chipped away at many of the twentieth century’s pivotal decisions, made government less responsive and effective, and handed enormous power to corporations and the extremely rich.

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In the 2016 case McDonnell v. United States, the justices unanimously overturned the conviction of a former Virginia governor who had performed a variety of services—setting up meetings, making introductions, pressuring other officials—in exchange for tens of thousands of dollars in luxury gifts and loans.

The average American would probably consider that to be bribery. The high court disagreed by ruling that none of the activities counted as an “official act,” and therefore they were protected by the First Amendment. “There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,” Roberts wrote for the court. “It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.”

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The 2019 decision Rucho v. Common Cause—written by Roberts himself—allowed state GOP lawmakers to give themselves [gerrymandered] supermajorities even if a majority of voters cast their ballot for a Democratic candidate.

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Self-government is impossible when elected officials know their power comes from gerrymandered districts and wealthy donors instead of the people.

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Of the 435 House seats that were contested in the 2024 election, only about 30 of them were actually competitive races between Democratic and Republican candidates. Americans who lived in the other 400 or so districts effectively faced a preordained choice. Entrenched partisan gerrymandering also encourages more extreme candidates, by making party primaries—where compromise and moderation are often dissuaded in favor of ideological purity—the decisive factors in an election’s outcome.

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As the Supreme Court was making the nation less democratic, it was also working to make its government less responsive and effective. Since the early twentieth century, Congress has created and relied upon specialized agencies like the Environmental Protection Agency and the Food and Drug Administration to regulate complex aspects of the national economy.

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For the Roberts court, however, those agencies represent a fundamental threat to the separation of powers. The court’s conservative majority has overturned precedents that required judges to defer to agencies’ interpretations in some cases and has struck down statutory protections that insulate some department heads from at-will dismissal. Congress’s intent in creating the agencies is sidelined in favor of stronger control by the executive branch and closer scrutiny from the conservative-led courts.

One of the Supreme Court’s most pernicious tools in recent years is the major questions doctrine. Under this doctrine, the court could overturn new regulations if it thought that Congress’s authorizing statute did not “speak clearly” enough to allow the agency to regulate a matter of “vast ‘economic and political significance.’”

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In addition to weakening Congress, the Roberts court has laid the groundwork for an authoritarian presidency. Its ruling in Trump v. United States last year, where the court created the doctrine of “presidential immunity” out of thin air, allows presidents to commit a wide range of crimes without fear of future prosecution.

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There is no constitutional basis whatsoever for that framework, or for the concept of “presidential immunity” in general. The Constitution itself only explicitly gives immunity to members of Congress in certain circumstances, such as travel to and from the Capitol and when participating in speeches and debates. The courts have also long recognized judicial immunity as an irreducible feature of the Anglo-American legal system. Presidential immunity, on the other hand, did not exist until Donald Trump asked for it and the Roberts court gave it to him.

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Members of Congress and federal judges can still be prosecuted for taking bribes to perform an official act. Trump, on the other hand, could issue pardons in exchange for personal payments of $1 million and still fall within the immunity ruling’s bounds. The Roberts court’s ruling is not merely a shield against overzealous prosecutors; it is a blank check for corruption and abuse of power.

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The Roberts court has spent the last 20 years dismantling liberal democracy as Americans have known it. Its rulings have paved the way for the first quasi-dictatorship in the republic’s history. Congress should add as many justices to the Supreme Court as it takes to produce a bench that believes in basic American values once more: self-government, civic virtue, and the rule of law.

Amen.

Greeted and thanked him.