During his confirmation to the Senate in 2005, John Roberts launched into a famous analogy: “Judges are like referees. The referees don’t make the rules, they apply them” and “make sure that everyone follows them”, declared the chief justice of the United States, insisting that it would be “his task” at the head of the Supreme Court. In recent months, however, this affable (almost) septuagenarian has not kept his promise and made decisions with his colleagues that had a resounding impact on the country and facilitated Donald Trump’s return to the White House.
John Roberts, considered one of the most brilliant jurists of his generation, has long had a faultless career. He worked in the administrations of Ronald Reagan and George Bush Sr., served as a judge in a federal court before being appointed in 2005, at age 50, president of the highest court by President George W. Bush. For twenty years, this Catholic father of two adopted children has displayed conservative positions without, however, playing the role of intransigent ideologues. His “big priority”, he assured in an interview with the magazine The Atlanticis to maintain the institution “apart from all partisan divisions” and to encourage its colleagues to render consensual judgments, obtained through compromise and moderation in order to “protect the institutional legitimacy” of the Court.
An increasingly politicized institution.
© / THE EXPRESS
Under his leadership, however, the nine elders gave great victories to the Republicans, for example by declaring unconstitutional a section of the Voting Rights Act, the law which prohibited racial discrimination in the exercise of the right to vote. With disastrous consequences, since it complicated the access of blacks to elections. But the year before, in 2012, John Roberts sided with Democratic members and thus helped save President Obama’s health reform. He also voted with them to prevent the Trump administration from eliminating a program that protects 700,000 undocumented immigrants who arrived on American soil as children from deportation.
The turning point began at the end of 2020, when Donald Trump nominated Amy Coney Barrett, after the death of a progressive judge. The balance of the Court was upset. Now made up of six Republicans (compared to three Democrats), it transformed itself into an ultraconservative bastion and continued to make decisions that aggressively overturned or ignored long-established jurisprudence. It put an end to positive discrimination in colleges, relaxed gun legislation, weakened the regulatory power of federal agencies to the great delight of employers and removed the constitutional right to abortion, in force for fifty years. In 2022, John Roberts tried to find a compromise on abortion, he proposed restricting it while maintaining it in the Constitution. In vain: his five conservative colleagues did not listen to him.
Donald Trump has everything of a “king”
In recent months, the President of the Court seems to have abandoned any idea of consensus and has voted in majority with the judges of his camp. Above all, he involved the highest judicial authority, in theory above the parties, in the electoral campaign. We owe him in particular the drafting of two crucial judgments very favorable to Donald Trump. According to the first, states cannot declare the Republican candidate ineligible by relying on the 14th amendment which excludes from public office anyone who has engaged in acts of “rebellion”.
Even more monumental, the six conservative members granted the former president broad immunity from criminal prosecution for official acts committed in the line of duty. A huge victory for Donald Trump, which spared him a trial before the elections. John Roberts justified himself by saying that the head of state makes “the most delicate and crucial decisions” of the entire government and must therefore benefit from “the maximum capacity to manage impartially and without fear” his responsibilities . Translate: should not worry about possible legal action. Judge Sonia Sotomayor, on behalf of her three Democratic colleagues, condemned in virulent terms this “extraordinary” ruling without “legal basis,” which “makes a mockery” of the principle that “no one is above the law.” “. The occupant of the Oval Office, she concludes, has everything of a “king”. John Roberts, who according to media reports had not anticipated such an outcry, responded that the Democrats’ “apocalyptic tone” was “totally disproportionate” to the decision.
Many jurists did not mince their words. It is “the most radical judicial reconstruction of the American presidency in history,” writes Sean Wilentz, professor of history at Princeton in the New York Review of Books. No court has ever protected a political candidate in this way.” For Steve Vladeck, professor of law at Georgetown University, “the message sent by the Court in almost every major decision is that it mocks the perception of half the country.”
He always believed in a very powerful executive.
This turn by John Roberts has sparked much speculation. “It was a conservative Supreme Court…but until recently not Trumpist,” said Michael Waldman, head of the Brennan Center for Justice. “The immunity case suggests we may be entering a new era.” Is it because the chief justice has become right-wing? Or rather because he wanted to avoid being sidelined by his conservative colleagues as during the vote on abortion? Or is it just because the subject of immunity was close to his heart? “He has always believed in the idea of a very powerful executive. He thinks that the Watergate affair led to the erosion of presidential power. This decision on immunity, he has been waiting for his whole career” , says Carolyn Shapiro, professor at Chicago-Kent College of Law.
As Donald Trump prepares to return to power, John Roberts will undoubtedly have a central role more than ever. The question remains whether the Court will limit the autocratic ambitions of the new president or whether it will play the yes-man and confirm the constitutionality of his reforms, even the most contentious such as mass expulsions of undocumented immigrants or the purge of civil servants. In this case, given the fact that the Republicans also control Congress, there will no longer be a single safeguard to counter the White House.
“In my opinion, the Court will be much more open [à ses réformes] because the new administration will be better able to put them in place, continues Professor Shapiro. During his first term, Donald Trump lost a number of cases before the judges due to the incompetence of his teams.” In addition, she adds, “the election removed pressures that weighed on the nine wise men. After decisions like those on abortion, there was a public debate on the need to reform the institution. But since the election, this is no longer feasible for the moment.”
Donald Trump has a chance to shape the highest judicial body a little more in his image with new appointments in the next four years. In recent days, there has been speculation, although it is totally improbable, about the departure of Sonia Sotomayor, 70, the oldest Democratic judge whom Joe Biden could replace before January. We also discussed the resignation, under Trump II, of Republicans Clarence Thomas, 76 years old, and Samuel Alito, 74 years old, which would make it possible to appoint younger judges and ensure the domination of conservatives for the next thirty or forty years. . Neither has shown any desire to leave, despite multiple ethical scandals. They notably refused to recuse themselves from matters related to January 6 when Samuel Alito planted flags in his garden with symbols used by Trumpists who contest the result of the 2020 elections. As for Clarence Thomas, his wife was very involved in the maneuvers to change the result of the election four years ago.
Repeated scandals added to intense politicization have eroded confidence in the institution. According to a September Gallup poll, only 44% of Americans approve of his action, a drop of 18 points compared to 2000. And his credibility risks taking a hit if we are to believe JD Vance. The vice president suggested before the election that if the Supreme Court ruled that the purge of public officials was unconstitutional, Donald Trump would just have to ignore it…
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