It felt like a mafioso move. For months, he’d been denouncing the Justices—particularly two of his own three appointees, Neil Gorsuch and Amy Coney Barrett—when they didn’t decide his way. In February, after the Court ruled that Trump couldn’t invoke a national emergency in order to impose sweeping tariffs, he told reporters that Gorsuch and Barrett, who’d joined the 6–3 majority, were “an embarrassment to their families.” At a White House Easter lunch later that day, Trump made it clear that he sees judicial appointments as quid pro quos, doing a mincing imitation of Justices who won’t knuckle under: “ ‘I don’t care if Trump appointed me, I don’t care, it doesn’t make any difference to me—I’m voting against him!’ ” He added, “They want to show their independence, you know? Stupid people.” (The White House posted, then took down, a video of the speech.)
Watching Supreme Court oral arguments can feel like watching a play—the Justices emerge from behind red velvet curtains to take their appointed seats at a long bench. As Clare Cushman, of the Supreme Court Historical Society, told me, “It’s not entertainment, but it’s entertainment-adjacent.” On April 1st, Trump’s presence generated dark comedy and cringily implausible encounters. He arrived at the Court with a posse: Howard Lutnick, the billionaire Commerce Secretary; David Warrington, the burly White House counsel; and Pam Bondi, the obedient Attorney General whose firing, for not being obedient enough, Trump announced the next day. (He reportedly gave her the news while they rode in a limousine to the Court.) In the guest section, apparently at the invitation of one of the liberal Justices, sat Robert De Niro, an inveterate Trump critic. A few rows behind the President was John Eastman, a former lawyer known for opposing birthright citizenship; he’d been disbarred in California for his role in a scheme to return Trump to the White House after the 2020 election. On the plaza outside, the celebrity chef and activist José Andrés, wearing an “Immigrants Feed America” T-shirt, addressed protesters who carried signs saying “It’s Literally in the Constitution” and “Born Here, Belong Here.”
Peter Shane, a constitutional-law scholar at New York University, told me, “I wondered if Trump understood that he wouldn’t be the center of attention. The Chief Justice wouldn’t be staring him in the eye, there’d be no television cameras on him. That is not usually his cup of tea.” In the end, there were no disruptions, not even when Trump walked out after the government’s lawyer made his presentation and before the opposing lawyer, from the A.C.L.U., had got very far into hers. The Justices seemed to avoid even glancing at the President.
Still, it was another profoundly strange moment in a profoundly strange time for the Court—especially for the seventy-one-year-old Chief Justice, John Roberts. Twenty-one years into his tenure, he keeps waking up, “Groundhog Day” style, to the same ironic scenario: he’s a proponent of maximal Presidential authority who is compelled to deal with a President especially likely to abuse it. (Roberts, a George W. Bush appointee who is reflexively polite, with a self-deprecating sense of humor, probably wouldn’t even enjoy a round of golf with Trump.) Roberts has leveraged his mild persona to defend the Court’s political neutrality at a time when Americans increasingly see it as partisan; according to a recent poll by the Pew Research Center, more than half hold an unfavorable view of it—a near-historic low.
Whereas Roberts likes to stress that the Court is fundamentally nonpartisan and frequently unanimous—the Justices agree around forty per cent of the time, though typically on minor issues—many Americans believe that he has presided over a rightward march in the Court’s jurisprudence, on such issues as affirmative action, immigration and asylum, abortion, voting law, gun rights, and the separation of church and state. And, with a few high-profile exceptions, such as the tariffs case, his Supreme Court has overruled lower courts to permit much of Trump’s second-term agenda to proceed. This has often happened without explanation, because the decisions have been issued on the emergency, or “shadow,” docket—that is, decided without a full briefing, oral arguments, or detailed opinions. Of the thirty-five requests for emergency action made by the second Trump Administration—on everything from defunding scientific research to allowing people to be deported to “third countries” where they have no affiliations—the Court has ruled in the Administration’s favor, in part or in full, twenty-five times, generally with the three liberal Justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, in dissent. Among the fifty-six cases fully briefed and argued before the Court this past term, there were 6–3 splits between the Republican and Democratic appointees in thirteen rulings, compared with six last term.
To some observers, the fact that the Court ruled against the Trump Administration in a few major opinions—including, it turned out, the birthright- citizenship case—was a reassuring affirmation of Roberts’s view that it operates outside the realm of politics. Trump’s theatrics fuelled this impression: his clumsy attempts to tip the balance obviously failed. William Baude, a law professor at the University of Chicago, argued in the Times that the Roberts Court was “one of the most independent” he could “imagine at this stage of the second Trump administration.” Yet the term was overwhelmingly favorable to the President, and, though the final rulings certainly matter, of equal importance is the Court’s choice of which cases to take up in the first place. Steve Vladeck, a law professor at Georgetown, pointed to the Court’s handling of Louisiana v. Callais, in which the conservative majority gutted portions of the Voting Rights Act. Vladeck noted that the Court could have treated the case—involving Louisiana’s creation of a majority-Black voting district—as a smaller dispute, but instead it ordered the parties involved to re-argue the case as a broad test of the constitutionality of weighing race when redistricting. Vladeck said, “A big theme of this term is all these times when the Court could have looked like it was above politics but chose to lean in. This is the one institution left in the country that had a chance to say, ‘We have long-term principles’—and instead it got swept up in the political moment.”
Roberts has offered the occasional courteous rebuke to the President’s public trashing of the judicial branch. In 2018, after Trump dismissed a district-court judge who’d rejected one of his asylum policies as an “Obama judge,” Roberts declared, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Even those lofty, carefully considered remarks rankled Trump. At the Easter lunch this year, he said, “ ‘There is no Republican judge and there is no Democrat judge,’ a certain person says. And I say you’ve lost all credibility when you say that.”
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.” On Truth Social, Trump blamed “sleazebag ‘journalists’ ” for suggesting that his comment to Roberts was related to the immunity decision. He said that he’d just been thanking Roberts for swearing him in at his second Inauguration. Nobody who knows Roberts thinks that he could have found the gesture anything other than embarrassing.
Roberts, with his country-club equanimity, can seem like a man out of time—maddeningly or reassuringly, depending on your perspective. Even as a septuagenarian who peers at lawyers over reading glasses, he projects boyishness. He has the same modest swoop of a forelock that he’s had since his confirmation hearings. (A longtime Supreme Court sketch artist told me that Roberts’s bland good looks and buttoned-down comportment make him challenging to draw.) Roberts has called himself a “dinosaur” when it comes to A.I., and he’s never stopped writing opinions by hand. He still likes to boast about how collegial the Court is, though lately he’s had to temper those claims: in a speech at Rice University this past March, the best he could muster was “We’re not as much at each other’s throats as you might think.” Back in the nineties, both Democrats and Republicans loved to praise the unlikely friendship of the (liberal, feminist) Justice Ruth Bader Ginsburg and the (conservative, originalist) Justice Antonin Scalia. If such a friendship exists on the Court today, there’s no evidence of it.
In oral arguments, Roberts is generally unruffled. He takes up less airtime than most other Justices and seems less aggravated and indignant than the most aggravated and indignant among them—Samuel Alito for the conservatives, Jackson for the liberals. (An analysis by The Hill found that Jackson had the highest spoken-word count this past term, at more than seventy-five thousand, whereas Roberts was at about twenty thousand, ahead only of Clarence Thomas, who until recent years barely spoke from the bench.) Robert’s harshest interjections—and they aren’t that harsh—come when he reminds a colleague not to interrupt a lawyer or another Justice.
Still, it must be confounding to have Roberts’s job these days. In one sense, he’s been getting so much of what he has long believed in: the weakening of the administrative state, the enlargement of Presidential power, and the rollback of affirmative action and of voting-rights protections for minorities, which he thinks our society no longer needs. (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he famously wrote in 2007.) These are goals he’s sought since he worked in the Reagan White House. The string of conservative victories must be one reason that, as he deadpanned to an audience in Buffalo last year, he has no plans to retire: “I’m going out feet first.” This is one point on which the young Roberts and the current one do not concur—in a 1983 memo to Reagan’s White House counsel, Fred Fielding, Roberts noted that the Framers had adopted life tenure for federal judges, including those on the Supreme Court, “at a time when people simply did not live as long,” adding, “A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace.” Roberts, then twenty-seven, suggested term limits of about fifteen years for federal judges, to insure that they’d “not lose all touch with reality.” In Buffalo, Roberts said that he’d entrusted two friends to tell him if it was “time to go,” but added that he felt “pretty healthy” and that it was “exciting to get up every morning and go into work.”
His workplace is trickier than it used to be, though. Although his conservative flank has a lock on power, Roberts himself has less sway than ever over an increasingly fractious Court. Notably, the Chief Justice has less room for the cagey maneuvering, including narrowing the scope of decisions, that he’s often used to build consensus, as with a 2012 opinion that brokered a compromise on the Affordable Care Act by characterizing its insurance mandate as a mere tax. In 2018, Roberts told an audience at the University of Minnesota that “you can try to get as many people on board as you can” by keeping decisions narrow, and by only deciding “what is absolutely necessary to be decided.” But today’s Court often divides along stark ideological lines, and the liberals often sound truly distraught in their dissents. Jackson, describing the majority’s decision in the Presidential-immunity case, invoked “a five-alarm fire that threatens to consume democratic self-governance.” Kagan wrote an impassioned dissent to the Court’s 6–3 decision in the Louisiana-redistricting case. Opting to read passages of her opinion aloud from the bench, for impact, Kagan repeated “I dissent” like a chant as Roberts and Alito—whom Roberts had chosen to write the opinion—stared straight ahead. Kagan spoke of “the majority’s now completed demolition of the Voting Rights Act,” a law “born of the literal blood of Union soldiers and civil-rights marchers.” [...]
Vladeck, the Georgetown law professor, said that the two-year period before Barrett replaced Ginsburg, firmly tipping the Court’s balance, was the high point of Roberts’s ability to work out compromises: “He will never be in more control than he was between 2018 and 2020, when he was the median on everything.” Ironically, the firmly conservative majority has watered down Roberts’s power. This became especially clear in 2022, when Roberts tried to find a middle way in Dobbs v. Jackson Women’s Health, which overturned the constitutional right to abortion. When the Justices met for a final vote on whether they’d take the case, Roberts, Barrett, and the three liberals voted to turn it away, according to reporting by Adam Liptak and Jodi Kantor, of the Times. But the Court requires only four Justices to grant a case, and Brett Kavanaugh, who Roberts had hoped would back his strategy of prudent avoidance, wouldn’t go along. Roberts ended up writing a concurrence, arguing for a “more measured course” in which the Court would uphold a Mississippi ban on abortions after fifteen weeks and toss out the long-standing rule that abortion was legal until a fetus was viable, but stop short of discarding Roe v. Wade altogether. He was following, he wrote, “a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” But the liberals were having none of it, and the conservatives wanted to end abortion immediately. “In the aftermath of Dobbs, he was the proverbial man without a country,” Luttig said.
During the first Trump Administration, Roberts’s position as tiebreaker sometimes allowed him to adopt a professorial tone, offering critical notes on the government’s legal strategies. In two 5–4 opinions invalidating Administration actions, he gave implicit advice on how the government might have pursued its aims differently. In one case, the Administration wanted to place a citizenship question on census forms, claiming that this would somehow help protect minorities’ voting rights. (Opponents said that the true intent was to scare immigrants away from filling out the form, and, thus, from being counted.) Roberts called the government’s explanation “contrived,” suggesting that it would have found success had it been more forthright. In a second case, Roberts rejected “post-hoc rationalizations” that the government had given for invalidating the DACA program, which allows some immigrants who came to the country illegally as children to avoid deportation. Benjamin Eidelson, a professor at Harvard Law School, told me that Roberts, to his credit, was trying to make the Administration more accountable for its controversial agenda. But it’s also possible that Roberts had found a clever way to deflect some explosive cases; if so, that leverage is gone—the current Administration is too emboldened to engage in pretenses. “When the Court struck down big policies in Trump’s first term, it was because the Administration had concealed or obscured from the public what was really going on,” Eidelson explained. “In both the census case and the DACA case, the Chief Justice’s theme was ‘You can do this if you want, but you have to own the choice and pay the political price.’ Now the Administration is just saying the quiet part out loud.”
It takes a determinedly selective eye not to see the increasingly open divisions among the Justices. Some of them have been speaking publicly about their chagrin with the Court, and with one another, in ways they rarely would have earlier in Roberts’s tenure—even though that surely displeases him. “This is a very careful guy,” David Leebron, a friend of Roberts’s from their law-school days, at Harvard, told me. “He’s a person who is not going to say anything he shouldn’t say.” [...]
To some observers, the fact that the Court ruled against the Trump Administration in a few major opinions—including, it turned out, the birthright- citizenship case—was a reassuring affirmation of Roberts’s view that it operates outside the realm of politics. Trump’s theatrics fuelled this impression: his clumsy attempts to tip the balance obviously failed. William Baude, a law professor at the University of Chicago, argued in the Times that the Roberts Court was “one of the most independent” he could “imagine at this stage of the second Trump administration.” Yet the term was overwhelmingly favorable to the President, and, though the final rulings certainly matter, of equal importance is the Court’s choice of which cases to take up in the first place. Steve Vladeck, a law professor at Georgetown, pointed to the Court’s handling of Louisiana v. Callais, in which the conservative majority gutted portions of the Voting Rights Act. Vladeck noted that the Court could have treated the case—involving Louisiana’s creation of a majority-Black voting district—as a smaller dispute, but instead it ordered the parties involved to re-argue the case as a broad test of the constitutionality of weighing race when redistricting. Vladeck said, “A big theme of this term is all these times when the Court could have looked like it was above politics but chose to lean in. This is the one institution left in the country that had a chance to say, ‘We have long-term principles’—and instead it got swept up in the political moment.”
Roberts has offered the occasional courteous rebuke to the President’s public trashing of the judicial branch. In 2018, after Trump dismissed a district-court judge who’d rejected one of his asylum policies as an “Obama judge,” Roberts declared, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Even those lofty, carefully considered remarks rankled Trump. At the Easter lunch this year, he said, “ ‘There is no Republican judge and there is no Democrat judge,’ a certain person says. And I say you’ve lost all credibility when you say that.”
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.” On Truth Social, Trump blamed “sleazebag ‘journalists’ ” for suggesting that his comment to Roberts was related to the immunity decision. He said that he’d just been thanking Roberts for swearing him in at his second Inauguration. Nobody who knows Roberts thinks that he could have found the gesture anything other than embarrassing.
Roberts, with his country-club equanimity, can seem like a man out of time—maddeningly or reassuringly, depending on your perspective. Even as a septuagenarian who peers at lawyers over reading glasses, he projects boyishness. He has the same modest swoop of a forelock that he’s had since his confirmation hearings. (A longtime Supreme Court sketch artist told me that Roberts’s bland good looks and buttoned-down comportment make him challenging to draw.) Roberts has called himself a “dinosaur” when it comes to A.I., and he’s never stopped writing opinions by hand. He still likes to boast about how collegial the Court is, though lately he’s had to temper those claims: in a speech at Rice University this past March, the best he could muster was “We’re not as much at each other’s throats as you might think.” Back in the nineties, both Democrats and Republicans loved to praise the unlikely friendship of the (liberal, feminist) Justice Ruth Bader Ginsburg and the (conservative, originalist) Justice Antonin Scalia. If such a friendship exists on the Court today, there’s no evidence of it.
In oral arguments, Roberts is generally unruffled. He takes up less airtime than most other Justices and seems less aggravated and indignant than the most aggravated and indignant among them—Samuel Alito for the conservatives, Jackson for the liberals. (An analysis by The Hill found that Jackson had the highest spoken-word count this past term, at more than seventy-five thousand, whereas Roberts was at about twenty thousand, ahead only of Clarence Thomas, who until recent years barely spoke from the bench.) Robert’s harshest interjections—and they aren’t that harsh—come when he reminds a colleague not to interrupt a lawyer or another Justice.
Still, it must be confounding to have Roberts’s job these days. In one sense, he’s been getting so much of what he has long believed in: the weakening of the administrative state, the enlargement of Presidential power, and the rollback of affirmative action and of voting-rights protections for minorities, which he thinks our society no longer needs. (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he famously wrote in 2007.) These are goals he’s sought since he worked in the Reagan White House. The string of conservative victories must be one reason that, as he deadpanned to an audience in Buffalo last year, he has no plans to retire: “I’m going out feet first.” This is one point on which the young Roberts and the current one do not concur—in a 1983 memo to Reagan’s White House counsel, Fred Fielding, Roberts noted that the Framers had adopted life tenure for federal judges, including those on the Supreme Court, “at a time when people simply did not live as long,” adding, “A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace.” Roberts, then twenty-seven, suggested term limits of about fifteen years for federal judges, to insure that they’d “not lose all touch with reality.” In Buffalo, Roberts said that he’d entrusted two friends to tell him if it was “time to go,” but added that he felt “pretty healthy” and that it was “exciting to get up every morning and go into work.”
His workplace is trickier than it used to be, though. Although his conservative flank has a lock on power, Roberts himself has less sway than ever over an increasingly fractious Court. Notably, the Chief Justice has less room for the cagey maneuvering, including narrowing the scope of decisions, that he’s often used to build consensus, as with a 2012 opinion that brokered a compromise on the Affordable Care Act by characterizing its insurance mandate as a mere tax. In 2018, Roberts told an audience at the University of Minnesota that “you can try to get as many people on board as you can” by keeping decisions narrow, and by only deciding “what is absolutely necessary to be decided.” But today’s Court often divides along stark ideological lines, and the liberals often sound truly distraught in their dissents. Jackson, describing the majority’s decision in the Presidential-immunity case, invoked “a five-alarm fire that threatens to consume democratic self-governance.” Kagan wrote an impassioned dissent to the Court’s 6–3 decision in the Louisiana-redistricting case. Opting to read passages of her opinion aloud from the bench, for impact, Kagan repeated “I dissent” like a chant as Roberts and Alito—whom Roberts had chosen to write the opinion—stared straight ahead. Kagan spoke of “the majority’s now completed demolition of the Voting Rights Act,” a law “born of the literal blood of Union soldiers and civil-rights marchers.” [...]
Vladeck, the Georgetown law professor, said that the two-year period before Barrett replaced Ginsburg, firmly tipping the Court’s balance, was the high point of Roberts’s ability to work out compromises: “He will never be in more control than he was between 2018 and 2020, when he was the median on everything.” Ironically, the firmly conservative majority has watered down Roberts’s power. This became especially clear in 2022, when Roberts tried to find a middle way in Dobbs v. Jackson Women’s Health, which overturned the constitutional right to abortion. When the Justices met for a final vote on whether they’d take the case, Roberts, Barrett, and the three liberals voted to turn it away, according to reporting by Adam Liptak and Jodi Kantor, of the Times. But the Court requires only four Justices to grant a case, and Brett Kavanaugh, who Roberts had hoped would back his strategy of prudent avoidance, wouldn’t go along. Roberts ended up writing a concurrence, arguing for a “more measured course” in which the Court would uphold a Mississippi ban on abortions after fifteen weeks and toss out the long-standing rule that abortion was legal until a fetus was viable, but stop short of discarding Roe v. Wade altogether. He was following, he wrote, “a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” But the liberals were having none of it, and the conservatives wanted to end abortion immediately. “In the aftermath of Dobbs, he was the proverbial man without a country,” Luttig said.
During the first Trump Administration, Roberts’s position as tiebreaker sometimes allowed him to adopt a professorial tone, offering critical notes on the government’s legal strategies. In two 5–4 opinions invalidating Administration actions, he gave implicit advice on how the government might have pursued its aims differently. In one case, the Administration wanted to place a citizenship question on census forms, claiming that this would somehow help protect minorities’ voting rights. (Opponents said that the true intent was to scare immigrants away from filling out the form, and, thus, from being counted.) Roberts called the government’s explanation “contrived,” suggesting that it would have found success had it been more forthright. In a second case, Roberts rejected “post-hoc rationalizations” that the government had given for invalidating the DACA program, which allows some immigrants who came to the country illegally as children to avoid deportation. Benjamin Eidelson, a professor at Harvard Law School, told me that Roberts, to his credit, was trying to make the Administration more accountable for its controversial agenda. But it’s also possible that Roberts had found a clever way to deflect some explosive cases; if so, that leverage is gone—the current Administration is too emboldened to engage in pretenses. “When the Court struck down big policies in Trump’s first term, it was because the Administration had concealed or obscured from the public what was really going on,” Eidelson explained. “In both the census case and the DACA case, the Chief Justice’s theme was ‘You can do this if you want, but you have to own the choice and pay the political price.’ Now the Administration is just saying the quiet part out loud.”
It takes a determinedly selective eye not to see the increasingly open divisions among the Justices. Some of them have been speaking publicly about their chagrin with the Court, and with one another, in ways they rarely would have earlier in Roberts’s tenure—even though that surely displeases him. “This is a very careful guy,” David Leebron, a friend of Roberts’s from their law-school days, at Harvard, told me. “He’s a person who is not going to say anything he shouldn’t say.” [...]
It’s true that, as Roberts has said over the years, the nine Justices are bonded by the singularity of their work: they are the only people in the world doing precisely what they do. And they have certain rituals to maintain comity. Before oral arguments, they shake one another’s hands, a tradition stretching back to the nineteenth century. “It’s a small thing, perhaps,” Roberts said in a 2018 speech, but an important reminder that “we do not serve one party or one interest.” They eat lunch together on each argument and conference day, and Roberts enforces a rule that they must not talk about work. Instead, they chat about baseball, movies, grandchildren. If it’s someone’s birthday, Roberts brings in a bottle of wine for a toast.
Still, given the two unprecedented leaks in the past four years—drafts of the Dobbs opinion and of the confidential memos behind a seminal 2016 emergency-docket opinion, which Kantor and Liptak reported on recently in the Times—the atmosphere must sometimes be tense. (An awkward internal investigation of the Dobbs leak reached no evident resolution.) Justin Driver, a Yale law professor who clerked for the former Justice Stephen Breyer, said, “These leaks are painful for anyone who cares about the reputation of the Court.” Driver remembered Roberts gathering the clerks in a room to talk about the importance of confidentiality: “It wasn’t a stern talking-to, but it was very, very clear—you do not talk about what is happening here.” On the right, commentators see the leaks as part of a campaign to delegitimize the Court, and Roberts in particular. Fox News’s main response to the Times’ shadow-docket scoop—which showed that Roberts had moved aggressively to quash President Barack Obama’s signature environmental initiative, the Clean Power Plan—was to run an online op-ed, by the conservative legal scholar John Yoo, titled “The Left’s War on the Supreme Court Just Hit a Terrifying New Low.” Wermiel found this framing highly selective. “We don’t know who leaked this material,” he said. “But, even if you assume that conservative critics are right—that a liberal-leaning clerk was trying to undermine Roberts’s credibility—I don’t think it even comes close to Trump’s efforts to humiliate and denigrate the Court and its Justices.”
People familiar with the Court’s inner workings told me that new ways of conducting business might also be fraying nerves. Until a decade ago, the shadow docket was used only occasionally, mainly for true emergency applications—such as capital cases in which individuals faced imminent execution. Now it’s the venue for all kinds of substantive statutory and even constitutional matters, from immigration to election law, in large part because the Trump Administration has made such aggressive use of it—constantly filing for “emergency” relief to vanquish lower-court rulings that impede its policies. A former clerk said, “More of those decisions are essentially battles of memos, rather than human processes where the clerks talk, and then the Justices talk, and there are multiple drafts of opinions. It’s much more impersonal, and it kind of crowds out any sense of compromise or engagement—of mutual understanding.” Shadow-docket petitions now pour in year-round, including in July and August—months when the Justices once had little, if any, Court business to attend to, and could enjoy speaking gigs in Rome or London, or work on their memoirs or children’s books. Today, Driver said, the Justices feel compelled to keep “interacting with each other” during the lull.
Roberts himself probably laments this change. He likes to paraphrase a quip by Justice Louis Brandeis, who said that he could do twelve months’ worth of Court work in ten months, but not in twelve. “We work at very close quarters on very important issues, on very sensitive issues,” Roberts said at a public appearance last year. “And we do need a little break from each other.” Some Justices socialize with one another over the summer, he added, but, as for himself, “I’m a—I think I’ve got the group right—Four Seasons fan, and my approach is ‘See You in September.’ ” (He got the group wrong—the song was recorded by both the Tempos and the Happenings. [...]
On May 6th, a week after the Court announced its decision in Louisiana v. Callais, triggering immediate efforts by Republicans in Southern states to break up majority-Black voting districts, Roberts gave a speech in Hershey, Pennsylvania. He took the opportunity to lament how misunderstood the Court is. “People think we’re making policy decisions,” Roberts said, with evident frustration. “I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do.” He used to deliver this refrain in cheerier cadences. In 2005, when he was appointed to the Court by Bush, he immediately became Chief Justice. (The former Chief Justice, William Rehnquist, had just died, of thyroid cancer.) During the confirmation process, Roberts famously invoked a baseball metaphor: judges are like umpires, and their job is to call balls and strikes, not to pitch or bat. Yet does Roberts truly not care who wins the games? He emerged from a specific political culture, with a set of conservative policy preferences that go back to his college days. As Chief Justice, he has found ways to align his legal reasoning with those policy preferences in many, many cases.
A former clerk for another Justice told me that, when he was at the Court, he never really got Roberts’s “talk about balls and strikes.” Although Roberts believed in decorum and was “always polite,” he also “seemed pretty ideological—he has an agenda and knows how to move it forward.”
There are exceptions—most notably, the 2012 Obamacare ruling, when Roberts angered conservatives by finding a convoluted way to determine that the individual insurance mandate was constitutional. But he has unquestionably helped realize many long-held conservative goals—and he has been far more effective at this than congressional Republicans. Nor is the Roberts Court merely reflecting the people’s will: its jurisprudence is well to the right of the average American voter, according to a recent statistical analysis.
It may not be necessary to classify Roberts as either an ideologue or an institutionalist. Wermiel, the former American University law professor, told me, “I don’t think there needs to be an overarching theory that explains everything about him and the Court. I think he has some very strong, ideological views, and they take precedence. If he can try in a case to cool things off a bit and find consensus, and thinks that’s in the best interest of the institution, I think he does that, and he’s done it well on some occasions. But he certainly doesn’t do that all the time.”
In the eighties, Roberts spent several years in the Reagan Administration, first as a special assistant to the Attorney General, William French Smith, and then as an associate counsel to the President. During this period, he seems to have crystallized his thinking on many issues that later came before him on the Court. The Justice Department was then almost a think tank within the Administration, generating new arguments and initiatives for downsizing government, dismantling affirmative action, overturning abortion rights, supercharging the office of the Presidency, and unleashing free markets. Amanda Hollis-Brusky, a politics professor at Pomona College, has written that the Reagan Justice Department should be “described as revolutionary for the legacy it left behind in the form of ideas, and more importantly personnel, who were shaped by those ideas.” Many staffers went on to federal judgeships and to influential positions in the Federalist Society, the Heritage Foundation, and other right-leaning organizations, forming what is now known as the conservative legal movement. Two staffers, Alito and Roberts, eventually joined the Supreme Court.
Image: Illustration by Paul Rogers/Source photograph by Erin Schaff /Getty
