John Roberts puts off deciding where he stands on fascism

Has the "conservative institutionalist" gone full MAGA? He won't say, but his votes suggest he's at least willing to let the Supreme Court flirt with going there.

Chief Justice John Roberts is maddeningly silent on the biggest issue in America: President Donald Trump’s growing lawlessness.

Roberts — who will have been chief justice of the United States, not just of the Supreme Court, for 20 years this fall — spent Saturday telling Americans that criticism of judges that rise to the level of “threats” are “unacceptable” because they can lead to “serious threats of violence and murder of judges just simply for doing their work.”

Accordingly, “political people” criticizing the courts must “keep that in mind,” Roberts said at a judicial conference organized by judges of the U.S. Court of Appeals for the Fourth Circuit.

Roberts is right that violent threats — and, obviously, actions — are unacceptable.

And yet, it was astounding to hear Roberts talking about the safety of judges as the Trump administration continues creating horror story after horror story in service of Stephen Miller’s racist, nativist, anti-immigrant campaign of hate.

Those who have been subjected to this intentional, state-imposed violence include American citizens; students and others here with legal status; upwards of a million people whose legal status has been stripped by the administration, with the Supreme Court’s interim blessing; and undocumented people, including many who have been here for more than a decade and many with no criminal record in the U.S.

And yet, the day before Roberts’s speech, he quietly joined the Supreme Court’s purportedly procedural opinion opening the door, at least for now, to one of the most lawless actions of the Trump administration in its Miller-led efforts: Trump’s January 20 executive order purporting to end birthright citizenship.

Roberts does not see that threat of violence.

Roberts, again quietly, also joined the Supreme Court’s similar action at the start of the week, too, blocking a district court order that merely required the Trump administration to provide basic due process to people subject to deportation when the Trump administration was seeking to send them to a random country — the so-called “third country removals” that have included efforts to send people to Libya and South Sudan, two places on the State Department’s “do not travel” advisory list due to the risk of “crime, kidnapping, and armed conflict.”

Roberts did not see that threat of violence.

Roberts, despite his role as Chief Justice of the United States, has failed to act for the United States in this moment — looking less like the conservative institutionalist that he sought to present himself as for the first 15 years of his time on the court and more like a Republican senator who might say behind closed doors that he disagrees with President Donald Trump’s methods but then votes right along with the most MAGA senator.

And, on June 27 in particular, we have only Roberts’s votes to go on. He wrote nothing on the last day of opinions this term.

Instead, Roberts presumptively assigned the nationwide injunctions-ending opinion to Justice Amy Coney Barrett in the challenges to Trump’s birthright citizenship order.¹

He wrote nothing. He apparently saw no threat of violence in allowing the federal government to “develop[] and issu[e] public guidance about the Executive's plans to implement” an unconstitutional executive order that would tell Americans how the government plans to bar people born in America from being Americans.

At the oral arguments in the case on May 15, when Justice Elena Kagan suggested to Solicitor General John Sauer that it could take “four years” for the case to get back to the Supreme Court if the Trump administration got a ruling ending universal injunctions, Roberts jumped in.

Noting that “this Court can issue a decision and it will bind everything else,” Roberts asked Sauer, “Is there any reason in this particular litigation that we would be unable to act expeditiously?“

I guess, for now, that is the narrow passageway that we have to hope Roberts and at least one other Republican appointee are leaving open for the next stage in this litigation.

Talking about criticism of judges and their rulings in his Saturday speech, Roberts said, “What they’re angry about or upset about is probably not” that a court applied some canon of law in a certain way, “it’s that they lost whatever they’re looking for.”

In a way, I do think that’s right.

Many were looking for justice in a case over a clearly unconstitutional order from the president, and the reactions that Roberts is seeing, yes, are from those who fear we are losing it.

1. Roberts also assigned the opinion granting parents the ability to challenge virtually any school action, by way of a religious objection, to Justice Sam Alito in the case over LGBTQ+-themed books in a public school. I’ll have more on that case, Mahmoud v. Taylor, later this week.