A Rolling Coup: John Roberts and the Unravelling of American Democracy

No feature of our governmental system has been more hospitable to the Trump administration’s attack on constitutional democracy than the Supreme Court and its current majority of conservative ideologues and religious extremists.

In “John Roberts and the Unravelling of Democracy,” their new piece for The Washington Spectator, Stephan Richter and James Maxeiner dissect Chief Justice Roberts’s lifelong crusade to concentrate power in the executive and dismantle the checks and balances that shaped the American project from inception.

The authors establish that Roberts and the Court he presides over have undertaken a massive expansion of the powers of the presidency, and as if that weren’t bad enough, a judicial push enabling a shift toward autocracy—two fundamental changes “that would have been unimaginable during the first 250 years of U.S. history.”

“Both developments run completely counter to the country’s founding principles,” they point out. “Indeed, in many ways they constitute a resurrection of the royal privileges that gave rise to the American Revolution in the first place.”

The courtly Roberts, the authors recall, promised an era of judicial restraint and respect for precedent when he was first elevated to Chief Justice in 2005. “Roberts’s genial demeanor and careful rhetoric in public may have earned him a reputation as a cautious institutionalist,” they argue, “but he is using that reputation as camouflage as he systematically shreds the well-established institutional web of the United States, including the separation of powers.”

And where Roberts has often pointed out that the Supreme Court avoids engaging in politics to protect its own institutional legitimacy, “under his stewardship key decisions of the United States Supreme Court since at least 2010 reflect a steady and intensifying partisan bias.”

Roberts has repeatedly presided over rulings that weaken independent oversight of the executive branch and concentrate power in the White House. Viewed individually, these decisions may appear to be merely a fine-tuning of the constitutional balance, as Roberts himself as argued.

The authors, both distinguished analysts of American politics and jurisprudence, disagree. “Taken together, however, they shift power away from Congress and from independent agencies—the very institutions that can counterbalance the power of the president. As Trump demonstrates on an almost daily basis, a rogue presidency under such circumstances degenerates into a dangerously uncontrollable center of power.”

The authors suggest the most preposterous and shameful decision by the Court under Roberts stewardship was its endorsement of Trump’s assertion of presumptive presidential immunity. In Trump v. United States, the majority ruled that a president has absolute criminal immunity for official acts done under core constitutional powers and presumptive immunity for other official acts.

Despite claiming to adopt an “originalist” approach, in that the Court bases its decisions on an understanding of the text of the Constitution, the Court drew its immunity decision out of thin air. As the authors remind us, “the case made law of disgraced former President Nixon’s amazing post-resignation claim of May 1977: ‘Well, when the president does it, that means that it is not illegal.’”

Outwardly, but deceptively, Roberts proceeds in an incremental fashion: a provision is struck down here, a precedent weakened there, then another norm previously considered sacred in the American Republic is eroded.

“By limiting Congress’s ability to restrain the president, weakening voting protections and empowering the wealthy in politics, John Roberts, the genteel, non-revolutionary man, has helped create conditions where the democratic process is increasingly hollow—superficially intact with respect to procedure, but substantively diminished.”

Richter and Maxeiner conclude that “U.S. democracy with a small “d” could be shielded from the constant slide to autocracy, what pro-democracy advocates Tim Wirth and Richard Gephardt have called a “rolling coup,” if only some Republican legislators would live up to their responsibilities under the U.S. Constitution and end their submissive support of a relentlessly imperial President.”

Readers interested in further investigation into the singular and stealthy role John Roberts has played in reshaping American laws and social norms are encouraged to read “The Roberts Court and the Attack on Reproductive Freedom in America” by Lisa Graves, published in The Washington Spector last January.