In November 2018, a public spat broke out between former President Donald Trump and Supreme Court Chief Justice John Roberts. It began when District Court Judge Jon Tigar of San Francisco overturned the Trump administration’s new restrictions on political asylum, leading the president to dismiss Tigar as an “Obama judge.” In response, Roberts issued a statement to The Associated Press, declaring, “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. The independent judiciary is something we should all be thankful for.”
Determined to have the last word, Trump tweeted: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
The exchange with Trump bolstered Roberts’ image as an institutionalist committed to the fair and impartial administration of justice. But that image was and always has been a chimera.
Apart from Roberts’ lack of fidelity to constitutional text, history, and precedent, his opinion is conceptually sloppy, poorly organized, and incomplete.
Roberts’ 6-3 majority opinion in Trump v. United States, which accords Trump broad immunity from criminal prosecution for his “official” acts as president, proves beyond a reasonable doubt that we do, in fact, have Trump judges. And Roberts is the quintessential example. He is the leader of a reactionary judicial junta hellbent on rolling back the Voting Rights Act, gutting reproductive freedom, dismantling the New Deal, and establishing an imperial presidency that is beyond legal accountability.
The immediate effect of Roberts’ ruling is that Special Counsel Jack Smith’s election-subversion indictment of Trump will be stripped of many of its most important allegations, and any trial on the indictment will be delayed until well after the November election. If Trump wins, as he likely would if the election were held today, he would be able to order his new attorney general to dismiss the case, and do the same with the Mar-a-Lago documents prosecution.
Longer term, as Justice Sonia Sotomayor argued in a blistering dissent, Roberts’ opinion will have more dire consequences, as it “invents an atextual, ahistorical, and unjustifiable immunity that puts the president above the law.” The opinion is also, according to Boston University School of Law professor Jed Shugerman, a “constitutional embarrassment… incoherent… [and] hard to decipher.”
But this is the Supreme Court, and decipher it we must.
Distilled to its essence, Roberts and his like-minded benchmates held that the separation of powers mandates immunity. Without presidential immunity, Roberts proclaimed, the executive branch would be unable to take the “bold and unhesitating action” the country demands from its commander-in-chief for fear that his successor would target him for prosecution, turning the executive branch into one that “cannibalizes itself” with every change of administration. This is a novel interpretation of the Constitution, which does not contain text providing for presidential immunity from criminal prosecution. It also deviates dramatically from the Founding Fathers’ vision of a constitutional republic. In Federalist 69 and 77, two of the most seminal of the founding-era texts, Alexander Hamilton wrote that the presidents of the then-new United States would not have unlimited power but could, if needed, be prosecuted in the ordinary course of law. The entire point of the revolution was to rid the fledgling nation of an absolute monarch and enshrine the principle that no one is above the law.
Contrary to this sacred tradition, Roberts’ ruling endows Trump and future presidents with a monarchical kind of immunity, which he divides into three categories:
- Absolute immunity for exercising the “core powers” of the presidency that are enumerated in Article II of the Constitution. These involve such matters as, in Roberts’ words, “commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States.” Henceforth, actions taken pursuant to a core power can never be prosecuted.
- Presumptive immunity for “official acts” other than those considered core powers that are undertaken within the scope of the president’s official responsibilities and the “outer perimeter” of those responsibilities. The presumption can be rebutted, but only if the government can demonstrate that a given criminal prosecution “does not pose [any] dangers of intrusion on the authority and functions of the Executive Branch.”
- “Unofficial acts” for which there is no immunity.
This distinction between official and unofficial acts seems to be designed to rescue Trump from the clutches of the special counsel. Prior to the Roberts decision, the Supreme Court had never been called upon to review a criminal prosecution of a former president. Richard Nixon came close, but he had the good sense and just enough residual patriotism to resign and accept a pardon from Gerald Ford to avoid an indictment.
Roberts based his ruling in large part on a 1982 decision involving a wrongful termination lawsuit against Richard Nixon brought by a federal contractor. Nixon v. Fitzgerald held that presidents are entitled to “absolute immunity” in civil cases seeking damages arising from their official acts and “the outer perimeter” of their official duties. But Nixon v. Fitzgerald was explicitly limited to civil litigation, and the concurring and dissenting opinions in that case emphasized that the court’s decision had no application to criminal law. Now, courtesy of Roberts and his collaborators, Nixon v. Fitzgerald is the law of the land in both civil and criminal litigation.
Apart from Roberts’ lack of fidelity to constitutional text, history, and precedent, his opinion is conceptually sloppy, poorly organized, and incomplete. For example, Roberts concluded that Trump’s discussions with his then-acting attorney general and members of the Department of Justice about overturning the 2020 election were official acts entitled to immunity, but he declined to decide whether Trump’s discussions with Vice President Mike Pence are similarly entitled to protection or unofficial conduct undertaken as a candidate for office. That task—and the job of evaluating every other allegation set forth in Smith’s 45-page indictment—will be assigned to District Court Judge Tanya Chutkan when the case is sent back to her.
Even with the clearest guidance from the Supreme Court, the assignment of separating the official acts contained in Smith’s indictment from the unofficial ones would be time-consuming and daunting. But nowhere does Roberts offer a working definition of an unofficial act. Is an unofficial act one related to a political campaign, or one that is personal or private in nature, as Justice Amy Coney Barrett suggested in her concurring opinion? Although Roberts acknowledged that “distinguishing the president’s official actions from his unofficial ones can be difficult,” the closest he came to a definition is a line describing an unofficial act as one that is “manifestly or palpably beyond [the president’s] authority.”
Assuming that Chutkan can cut through the dense legalese of the majority opinion, she also will have to contend with the section of the ruling where Roberts holds that, “in dividing official from unofficial conduct, courts may not inquire into the president’s motives.” Because motive is often the key to proving criminal intent and intent is an element of the crimes alleged against Trump, it’s hard to see just how much of Smith’s case could survive even if Trump loses in November.
All that has Sotomayor and the dissenting justices outraged. “In fact,” Sotomayor argued in her dissent, “the majority’s dividing line between ‘official’ and ‘unofficial’ conduct narrows the conduct considered ‘unofficial’ almost to a nullity. It says that whenever the president acts in a way that is ‘not manifestly or palpably beyond [his] authority,’ he is taking official action.”
Forecasting nothing less than the demise of American democracy, Sotomayor continued:
The president of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
As the chief justice, Roberts could have assigned any other concurring member of the court to draft the majority opinion. That Roberts chose to write the opinion himself rather than farm it out to Clarence Thomas or Samuel Alito—both of whom should have recused themselves due to the conduct of their wives as outspoken supporters of the MAGA movement—or to one of the three younger justices appointed by Trump, is a testament to Roberts’ ego and a final and full revelation of his ideological extremism.
Roberts has spent his legal career as a right-wing political operative, dating back to his stint as a clerk for the late Supreme Court Chief Justice William Rehnquist, continuing in his work for the Reagan and Bush administrations, and into his role as a behind-the-scenes GOP “consultant, lawsuit editor, and prep coach for arguments before the Supreme Court” in the run-up to Bush v. Gore, the case that decided the 2000 presidential election.
His 2013 majority opinion in Shelby County v. Holder, which eviscerated the Voting Rights Act, ranks among the worst decisions in the Supreme Court’s history. His opinion in Trump v. United States deserves the same infamy.
