19 hours ago

John Roberts made Trump’s authoritarianism possible. He could still save his own legacy | Steven Greenhouse

John Roberts, chief justice of the US supreme court, should be very worried about how history will regard him. Roberts sees himself as a cautious conservative committed to protecting our institutions, but it increasingly looks as if history will view him very differently – as a deeply flawed chief justice who paved the way for the US to become an authoritarian state.

Roberts can’t possibly want to be viewed that way. But it is inarguable that several decisions he played a huge role in – most notably Citizens United and last year’s startling ruling that gave presidents far-reaching immunity from prosecution – helped lay the groundwork for Donald Trump’s increasingly authoritarian presidency. How could Roberts not realize that the immunity decision he authored would embolden Trump to violate law after law and act like an authoritarian?

Ever since Roberts became chief justice in 2005, two of his main objectives have been clear: to boost corporate America and to help Republicans consolidate power. Roberts didn’t seem to mind that several of his key court rulings, especially Citizens United, were turning the US into a plutocracy, with the rich and corporations having huge, undue power. But he must feel very uncomfortable that second-term Trump is quickly transforming the US into an authoritarian state, as Trump and Elon Musk steamroll the constitution and federal law while the president seeks retribution against perceived enemies and fails to fully comply with several judicial decisions.

Citizens United and several rulings that flowed from it – rulings that let corporations and wealthy individuals spend unlimited money on political campaigns – have played a key role in enabling Trump, in a mere few weeks, to create the most authoritarian presidency in US history. Thanks to those rulings, Musk was able to give more than $250m to help elect Trump and with that money, seemingly purchase unprecedented power by becoming Trump’s unelected chief operating officer and hatchet man.

Citizens United was dangerously myopic. Not only did it fail to see that income inequality was rapidly worsening, but also failed to foresee that super-rich individuals would someday give gargantuan amounts – like Musk’s $250m-plus and Miriam Adelson’s $100m – that would go far to overwhelm the voices of average Americans. What’s more, having the world’s richest man at his side has supercharged Trump’s ability to act in authoritarian ways. Republicans in Congress have grown terrified of opposing Trump, whether on his stabbing Ukraine in the back, his wholesale firings of federal employees or his trashing agencies that Congress funded, because they know that Musk can singlehandedly bankroll a primary challenge against them (and use his X account, with more than 200 million followers, to pummel them and sic the mob on them).

Last July, in another dangerously myopic decision, Roberts shocked the legal world with his broad presidential immunity ruling. In that case, Trump v United States, Roberts was so eager not to hamstring a president’s powers that his majority decision gave huge immunity to presidents when they take actions that would normally be seen as breaking the law. Roberts even laid out a roadmap for presidents to pretty much do whatever they want without having to fear prosecution – just consult with your attorney general before taking an action to ensure it is viewed as an official action and therefore qualifies for immunity, no matter how much it violates the law.

Roberts’ immunity ruling – which clashed with the desire of the framers of the constitution to constrain undue executive power, like George III’s – is blowing up in the chief justice’s face. The ruling gave presidents a bright green light to flout myriad laws, and Trump seems delighted to speed through that light by, for instance, failing to comply with several judges’ rulings. If Roberts wasn’t so short-sighted, he might have realized that it was perilous to issue an expansive immunity ruling just months before the authoritarian-minded Trump might win a second term.

There are other Roberts decisions that have helped fuel authoritarianism. In Rucho v Common Cause, he wrote that the court couldn’t do anything about egregious, anti-majoritarian gerrymanders that might, for instance, let parties that receive less than 50% of the vote control state legislatures. Last year, Roberts led the way in preventing Colorado from kicking Trump off the ballot. In doing so he blatantly ignored the 14th amendment’s specific language that says no one should hold any civil office of the United States if they “shall have engaged in insurrection”, as Trump did in orchestrating the January 6 assault on the Capitol.

Hopefully, Roberts realizes that some Roberts court rulings have helped Trump feel unbound and emboldened the president to fancy himself as king and invoke Napoleon’s I-can-do-anything-I-want statement: “He who saves his country does not violate any law.”

Crucially for Roberts and the nation, it might not be too late for the chief justice to do something meaningful to rescue his legacy, and our democracy. But doing something might not be easy because of the rightwing’s 6-3 supreme court supermajority and because Justices Samuel Alito and Clarence Thomas seem eager to serve as Trump’s lap dogs.

In a hopeful sign, Roberts recently showed some discomfort with Trump’s riding roughshod over the constitution and Congress’s spending powers: he voted to block Trump from halting $2bn in foreign aid.

That was promising, but there are four far more important things that Roberts should seek to do as soon as possible to limit Trump’s headlong rush to authoritarianism.

First, Roberts should lead the court in ruling that Trump egregiously violates the constitution and Congress’s Article I spending powers whenever he suddenly freezes spending that Congress has approved and whenever he shuts down agencies, like the Agency for International Development (USAid), that Congress created.

Second, Roberts has hinted he would overturn a unanimous 1935 ruling, Humphrey’s Executor, which says that presidents can’t fire members of congressionally created independent agencies. Opponents of that ruling want to give Trump the power to fire anyone in any agency – not just the National Labor Relations Board and Equal Employment Opportunity Commission, where he fired board members, but even inspectors general who investigate agency fraud and abuses. By now Roberts should realize it would be a big mistake to overturn Humphrey’s Executor because that would speed up Trump’s efforts to build a top-down, you-had-better-listen-to-me authoritarian state. Letting Trump fire agency officials and inspectors general at will would mean that they’d be replaced by partisan yes men who would do whatever Trump wants. Trump might, for instance, order agencies like the NLRB or EEOC to bring charges against corporations he views as enemies.

Third, Roberts needs to rein in Citizens United. Let’s hope that by now, even Roberts can see that Citizens United and its progeny have seriously undermined our democracy, that allowing billionaires to pour as much as they want into campaigns is anathema for democracy. Roberts should rush to invite several cases in which states have enacted limits on out-of-control campaign contributions, and then he should get the court to craft some sane campaign contribution limits to prevent the super-rich from warping and dominating our political system.

Lastly, Roberts needs to find a way to limit last year’s alarmingly broad immunity decision, which many legal commentators say was poorly reasoned and did a terrible job explaining which presidential actions are immune from prosecution and which aren’t. Roberts’ immunity decision has evidently made Trump feel he needn’t worry about being prosecuted if he were to violate federal law by, perhaps, taking a bribe to pardon certain criminals.

This is a very dangerous time for America’s democracy. Taking these actions would go far to rein in Trump’s authoritarian tendencies and make him think twice before violating the law. Not only that: these actions might make history look more kindly upon the myopic chief justice.