President Trump Has to Obey the Constitution, But So Does Chief Justice Roberts

Chief Justice John Roberts is on a whirlwind speaking tour, trying to avert an imagined constitutional crisis single-handedly. At Georgetown Law Center, Roberts described the rule of law as “endangered.” In Buffalo, Roberts stated that the courts must “check the excesses of Congress or the executive.” And in a statement, Roberts rejected President Trump’s charge that a federal judge in D.C. ought to be impeached. Instead, Roberts stated that the “appropriate response to disagreement” with a judicial decision is the “normal appellate review process.”

Roberts is quite right that the rule of law is “endangered,” the separation of powers are out of balance, and ordered liberty depends on a “normal appellate review.” But what Roberts misses is that he has exacerbated these problems in crucial moments. For nearly two decades, Roberts has decided contentious cases not based on the best reading of the law, but rather on a crude calculus of political costs and benefits. These rulings have corroded the Supreme Court as an institution, such that reasonable observers will always question whether Roberts’s decisions are based on law or politics.

Recently, Justices Samuel Alito and Clarence Thomas declared in dissent that “Both the Executive and the Judiciary have an obligation to follow the law.”  These justices are emphatically correct. As Roberts continues to lecture Trump about weakening the rule of law, the Chief should realize he shares in the blame.

Chief Justice Roberts’s Situational Jurisprudence

Roberts’s jurisprudence can best be described as situational. Rather than writing rulings for the ages, Roberts mediates controversies for the moment. Every case is decided based on the circumstances in which it arises. And for politically charged cases, Roberts will rule based on what is best for the Supreme Court as an “institution.” Of course, this inquiry is based on little more than what Roberts himself thinks about how the ruling will be perceived in certain quarters. In practice, the Chief will pursue the most conservative outcome that legal elites will tolerate. He makes his own assessment of the political costs and benefits of possible rulings, decides which outcome is ideal, and uses his brilliant legal acumen to figure out the best way of getting there―whether the parties raised that argument or not.

What is Roberts’s legacy? He will not be remembered as a careful originalist or textualist like Justice Antonin Scalia. Instead, Roberts eschews any formal method of judging that could limit his discretion. Roberts will not be venerated as a stalwart of judicial restraint, in the model of Justice John Marshall Harlan II. Through faux humility, Roberts purports not to overrule precedents, such as a landmark ruling on affirmative action, when in fact those earlier decisions no longer stand. Roberts has not pursued any defining legal issue in the way that his former boss, Chief Justice Rehnquist developed the Court’s federalism cases. And unlike fellow Bush appointee Justice Samuel Alito, Roberts was all by himself in the landmark decision overruling Roe v. Wade. It is unlikely that many in the Federalist Society will celebrate Roberts’s two decades on the bench, even as progressives grit their teeth to applaud Roberts when he is useful. Roberts’s decisions will fade from relevance as soon as his tenure concludes.

Roberts’s Faux-Solomonic Rulings

Roberts’s defining rulings are not models of judicial excellence. Instead, they dole out benefits to the left and the right in a transparent effort to split the baby. If Roberts views himself as an umpire, his strike zone will ensure that the red team and the blue team usually play a close game, and neither side wins by a large margin. Let’s start with the Chief’s defining ruling.

In NFIB v. Sebelius (2012), Robert changed his vote to uphold the Affordable Care Act. But to reach that result, Roberts rewrote a penalty into a tax and rewrote the mandatory Medicaid expansion as an optional program. And he did so during an apparently successful pressure campaign from legal elites. Few people believe that Roberts offered the best reading on the law based on neutral principles. Rather, the Chief twisted and turned the law to avoid striking down President Obama’s signature law, while still preserving some conservative separation of powers principles. More than a decade later, we are stuck not with the healthcare law that Congress adopted, but with the compromise that Chief Justice Roberts brokered.

During the first Trump Administration, Roberts issued a troika of split rulings. First, in Department of Commerce v. New York (2019), Roberts ruled that the executive branch had the broad power to inquire about citizenship status on the census. But, Roberts parried, the Trump Administration’s reasons for adding the question were “pretextual,” and further proceedings were needed to consider the rationale. Professor Noah Feldman of Harvard observed, “Roberts’s approach . . . is to try to craft a middle ground that will make the Supreme Court seem less purely political than it would if he opted to join the conservatives.”

Second, in Department of Homeland Security v. Regents of the University of California (2020), Roberts ruled that the executive branch could, in theory, terminate the DACA immigration policy. But in this case, the Trump Administration failed to adequately consider how that termination would affect the Dreamers. Again, a victory for the presidency, but a loss for Trump. Joan Biskupic of CNN lauded Roberts’s decision as “pragmatic and political.” 

The third case, June Medical LLC v. Russo (2020), involved abortion. Four years earlier, Roberts dissented in a 5-4 decision that halted abortion restrictions from Texas. But in June Medical, Roberts could have been the fifth vote to pare back Roe v. Wade. Instead, Roberts declared unconstitutional abortion restrictions from Louisiana that were nearly indistinguishable from the Texas abortion restrictions that he had favored. An anonymous conservative writer told Vox, “The only way to make sense of the Supreme Court’s abortion jurisprudence is to assume it is guided by one principle: ‘Pro-lifers must lose.’

Roberts’s triangulations continued during the Biden Administration. In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court at long last overruled Roe v. Wade. Chief Justice Roberts did not join the majority opinion. Nor did he join the dissenters and vote to reaffirm the Court’s abortion precedents. Rather, the Chief Justice split the difference again. Roberts ruled that Mississippi’s fifteen week abortion ban was permissible because pregnant women still had a “reasonable” opportunity to have an abortion. According to press reports, Roberts was attempting to persuade Justices Kavanaugh or Barrett to join his opinion, thus fragmenting the majority opinion. Thankfully, his efforts failed. Where did this manufactured rule come from? Who knows. Justice Alito explained that Roberts lacked “any principled basis,” and “would do exactly what [he] criticizes Roe for doing: pulling ‘out of thin air’ a test that “[n]o party or amicus asked the Court to adopt.” Here, Roberts wove a new standard out of whole cloth, but this Emperor had no clothes.

The Calculus of Compromise

If any of these five cases were considered in the abstract, they could be explained by some legal principle or another. But the arc of Roberts’s career, stretching over two decades, tells a different story. These cases were not decided by any principle broader than the Chief’s assessment of the political climate of the day. Obamacare was too big to fail. The census was not to be politicized. The Dreamers could not be deported. And abortion was the third rail of politics. Rather than making a ruling based on the best reading of the Constitution or federal law, the Chief Justice engaged in acts of balancing and mediation. In these cases, Roberts split the difference. He issued a ruling that favored the left, while preserving some legal victory for the right. 

The Chief Justice’s supposed moderation depends on people superficially skimming headlines and not digging deeper. But close watchers of the Court are not fooled. In 2020, Varad Mehta and Adrian Vermeule observed in the Washington Post that “Roberts’s consequential legac[y] will probably be the very politicization of the Supreme Court he sought to prevent.

Roberts’s decisions are often described as “Solomonic,” but this label disregards the wisdom of the biblical monarch. King Solomon never actually cut the baby in half, but developed a test to resolve the dispute: the real mother could not bear to see her child harmed. This timeless principle is still taught today. But Roberts’s opinions are tickets good for one ride, if that. They do not extend beyond the narrow confines of the decision. Roberts cannot lay claim to King Solomon’s throne. 

Roberts and Trump 2.0

The first one hundred days of the Trump Administration have brought an onslaught of puzzling rulings. To be sure, decisions on the so-called emergency docket are not signed, but each of these rulings is dusted with the Chief Justice’s fingerprints. And each of these cases has the hallmark of a Roberts compromise

First, in Bessent v. Dellinger, the lower court ordered the reinstatement of the head of the Office of Special Counsel. The Supreme Court declined to rule on the matter until the lower court's order expired, and then found that the controversy was moot. Justices Gorsuch and Alito dissented. The Court left in place the reasoning of the lower court, but declined to force President Trump to recognize the officer. This was a short-term victory for Trump, but it left Trump vulnerable to future attacks on his firings

Second, in Department of State v. AIDS Vaccine Coalition, a lower court ordered the executive branch to spend nearly $2 billion. The Supreme Court denied the government’s request to block that order, but still told the lower court to “clarify” its ruling. The import here was clear: the Court ruled against Trump, but in reality, the Court gave the executive branch a subtle victory

Third, in Trump v. J.G.G., a federal judge in D.C. blocked the Trump Administration from deporting alleged gang members under the Alien Enemies Act. The Court once again split the difference. The Court ruled that challenges to the deportation of alien enemies must be brought where the aliens were detained in Texas. But in the same breath, the Court found that Trump’s powers were limited: the judiciary could review those removals. Going forward, suits against the executive branch could proceed in the right forum, with exacting scrutiny. Again, the Court ostensibly ruled in favor of Trump on the minor issue, but ruled against him on the major question

Fourth, in Noem v. Abrego Garcia, a lower court ordered the return of an alien from an El Salvadoran prison. The Court, with Roberts at the helm, again split the difference: the judiciary could not order the government to return an alien in another sovereign’s custody, but the government had to explain how it would “facilitate” the alien’s return. The Trump Administration did not suffer the embarrassing defeat of having to demand Garcia’s release, but the judiciary could now strictly supervise removal actions.

So far, Chief Justice Roberts has only been in dissent in one emergency docket ruling. In Department of Education v. California, a lower court ordered the Trump Administration to pay out millions in educational grants. By a 5-4 vote, the Court held that suits against the federal government for damages belonged in the specialized U.S. Court of Federal Claims, rather than in a federal court in California. Roberts did not explain his dissent.

Perhaps the most inexplicable emergency docket ruling this year has been A.A.R.P. v. Trump. Here, the Trump Administration asserted the authority to remove certain aliens who were held in Texas. On Good Friday, the ACLU demanded an emergency ruling within an hour. Lower court judges, although working diligently, could not resolve these complex issues within such compressed timelines. The ACLU raced to the Supreme Court and sought an immediate ruling. Rather than waiting a few minutes for the lower court to rule, the Supreme Court entered an emergency order blocking the removal of the aliens. This decision leapfrogged over countless procedural hurdles and made some difficult legal rulings on the fly.

Justices Alito and Thomas summarized the remarkable ruling in their dissent: “In sum, literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order.” More than a month later, the Supreme Court finally issued a decision. It was pretty clear the Supreme Court had no interest in how the federal courts in Texas would rule―even when a Biden appointee would rule in favor of Trump! The outcome, and not the process, mattered.

Had Chief Justice Roberts begun his tenure in 2025, he could have approached the Trump Administration with a blank slate. However, there is history. Regrettably, decisions concerning Obamacare, immigration, abortion, and the census have squandered much of the credibility as an honest broker that the Chief once possessed. And every vote the Chief casts is viewed through the lens of nearly two decades of balancing acts and political compromises. In the Trump 2.0 cases, Roberts has often been joined by some of his conservative colleagues. Perhaps they agree with Roberts. Or they recognize that they need his vote to issue any judgments. They are stuck with Roberts as the swing vote.

Critics often argue that President Trump’s rulings should not receive the benefit of the doubt, or what lawyers call the “presumption of regularity,” because he has violated all norms of the executive branch. In much the same way, it is no longer reasonable to afford Chief Justice Roberts the benefit of the doubt or the presumption of judicial regularity. His rulings are about outcomes first, and the law second. The Chief is not an innocent bystander; he is an active participant, making him ill-suited to deal with a constitutional crisis, whether real or imagined.

President Trump has to obey the Constitution, but so does Chief Justice Roberts. The Chief’s two decades on the bench have contributed to the degradation of the rule of law. The people knew what they were getting when they re-elected Trump. However, the expectations must be different for an unelected, life-tenured Chief Justice

It is often repeated that we have three, co-equal branches of government. But that simply isn’t true. Alexander Hamilton described the judiciary as the “least dangerous branch.” Unlike the Congress, which has the power of the “purse,” and the President who wields the power of the “sword,” the courts have “merely judgment.” Yet, it has been deeply ingrained in our national consciousness that the courts' foundational role is to balance the power of the elected branches. Indeed, Chief Justice John Roberts boasted that the courts must “check the excesses of Congress or the executive.” But who will check the excesses of the judiciary? The greatest check on the courts can only be the widely held belief that the Court is not ruling based on politics. But if people believe the judiciary is simply a mediator that weighs political compromise, then the courts cannot long endure. 

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston.