The spinelessness of John Roberts

Chief Justice John Roberts doesn't want to lead. He is, though, carefully setting up a path to allow the right-wing court to respond to whatever comes its way in 2025.

A woman outside of the U.S. Supreme Court building on June 21, 2024, holds a rainbow painted banner declaring, “Vergogna, Supreme Court,” a reference to Martha-Ann Alito’s imagined “shame” flag.

When it comes to leading, Chief Justice John Roberts has chosen: No.

For all of Roberts’s focus on Monday on the singular role of the president, he remains steadfastly unwilling to acknowledge that he, as another individual in a named role in our constitutional structure, also has a responsibility for it — and for its failings.

Yes, Roberts and the court’s conservatives are collecting authority for themselves — particularly this term over administrative agencies in the executive branch and over Congress’s ability to delegate authority to those agencies to act.

Underneath it all, though, there is a more scary reality for our democracy: John Roberts has shown a shocking spinelessness.

His once-proud assertions of “institutionalism” have acceded to the possibility of a second Trump term by, essentially, leaving open many questions to a post-November determination. In case after case, the court has whispered, “We’ll hold off to see whether Donald Trump finds his way back into office,” even as the justices acted — repeatedly — to make that possible, if not more likely.

Even where the court has purportedly decided a case, it has left open different pathways for differing applications of the decision going forward.

Some of this is, in part, the result of the current vote count on the court. As Roberts learned when the other five Republican appointees overturned Roe v. Wade without him in 2022, the other five justices on the right don’t need his vote to craft a majority.

Roberts learned his lesson — but it was not the lesson others might have taken.

The lesson Roberts apparently took was, “Get back into power.”

This was seen in the vote counts this term — Roberts was in the majority the most of any justice, per Adam Feldman’s analysis — but it is also seen in Roberts’s lack of expressed concern about ethics questions and unwillingness even to engage with other national leaders on those questions.

In light of his response to Senate leaders’ concerns about Justice Sam Alito, who is a problem, it seems that Roberts no longer has any real interest in being seen as an ethical leader for the court or nation. Justice Clarence Thomas also has many unanswered and ongoing ethical questions about his behavior — which also reflect on Roberts. Little has changed there, aside from Thomas disclosing a couple of past trips each year after Pro Publica reports on them.

Both Thomas and Alito should have recused themselves from multiple cases this term. They did not do so. Roberts said nothing.

What we are left with, in issue after issue, is a set up for a “choose your own right-wing adventure” Supreme Court. Here is how I see the paths Roberts is leaving open to him and the court:

• If Joe Biden or another Democrat wins the 2024 presidential election, Roberts has set up the court to serve as a supercharged judiciary. Pushing back constantly against the democratically elected branches, the conservative court is positioning itself to strike down any regulation for virtually any reason.

• If Trump wins, Roberts has set up the court to be pliant appeasers of Trump’s planned right-wing authoritarianism. Sure, there will be minor pushback, but if Trump v. Hawaii was what we got out of the court during a first-term Trump administration, imagine what this more extreme court would OK in a second term.

This is true in the agency cases. A conservative court can easily conclude — no deference needed — that a conservative-led agency reached the “single, best meaning” of the law, as Roberts put it. The same conservative court can easily conclude progressive agency actions do not represent the “single, best meaning” of the law. With no real statute of limitations at play and no deference to the agency needed unless it has been specifically and appropriately — as decided by the judiciary — delegated to the agency, the court can do what it wants.

This is true in and after the immunity case. As I detailed on Tuesday, Roberts’s opinion for the court left the court with a lot of room to decide what’s what — when it comes to what are “core” functions of the presidency, whether a prosecutor rebuts a “presumption” of immunity, and whether acts are “unofficial” and not subject to immunity. It is a broad opinion, but if you’re a conservative justice and want to block its applicability to a Democratic president’s act, I bet you can find a way.

This is true in the emergency abortion care case. The opinion by Justice Amy Coney Barrett that Roberts joined (as well as Justice Brett Kavanaugh) in dismissing the case over the Biden administration’s interpretation of the Emergency Medical Treatment and Labor Act (EMTALA) as having been “improvidently granted” made clear that the court was not deciding “whether EMTALA requires hospitals to provide abortions.”

This is true in certiorari grants for next term, like the case over bans on gender-affirming medical care for minors, and the issues left intentionally unresolved in cases from this term, like the “wealth tax” case that wasn’t. Sure, some of this is always the reality in a presidential election year, but there is an almost aggressive nature to it here when viewed in conjunction with the other cases.

Beyond all of this are two further and essential questions — of what a second-term Trump would do and whether he would even follow the directives of the Supreme Court if and when it does push back.

Those are essential questions to understanding this moment and the path — or paths — ahead. They deserve full and independent treatment that others have been exploring and that I hope to delve into in the months ahead. Here, though, they are contextual questions necessary to keep in mind when examining what the court itself is doing now and how it is preparing for that possibility.

To effectively address that, the court — and nation — would need a leader.

John Roberts has repeatedly told us that it is not him.