Why Trump Thanked John Roberts

The exchange was so awkward, it should have been followed by the Curb Your Enthusiasm theme song. While President Donald Trump was shaking hands down the aisle, exiting the House chamber after his address last night, network cameras caught him as he turned to Chief Justice John Roberts, patted him on the back, and said, “Thank you again. Thank you again. I won’t forget.” Roberts, whose back was to the camera, then headed for the exit.

We can’t know precisely what the president meant, but Trump does have a lot to thank Roberts for. After all, the chief justice and the other conservatives on the Supreme Court helped rewrite the Fourteenth Amendment, completely gutting the ban on insurrectionists holding office in order to allow Trump to run for president again following his attempt to seize power by force after the 2020 election. Then Roberts and the other conservative justices manifested an absurd, imperial grant of presidential immunity, with no textual basis in the Constitution, to shield Trump from criminal prosecution, and in so doing set the stage for a despotic second term during which Trump will try to ignore court efforts to impose limits on his power.

In fairness, Roberts has not been as supplicant as some of his colleagues. He has been willing to occasionally refuse Trump demands; this morning, Roberts and Justice Amy Coney Barrett sided with the three Democratic appointees in declining to overturn an order from a lower court to unfreeze $2 billion in USAID funding. The underlying dispute here is more high-stakes than it might sound; the Trump administration is publicly, though not yet in court, claiming the right to usurp Congress’s constitutional authority over spending, which, if sustained, would bring the country closer to dictatorship. The dissent was so unhinged that one might conclude that there are only five votes on the Supreme Court to uphold the basic constitutional structure. But even though Roberts went against the president on this occasion, he is unlikely to be a reliable check on Trump’s lawlessness. Trump may well have more to thank Roberts for in the future.

[Read: Trump tests the courts]

Any casual observer of the Supreme Court can see what many prestigious constitutional lawyers can’t, which is that the conservative justices are frequently accomplices to Trump’s assault on democracy—a flag signaling support of the January 6 insurrection flew outside Justice Samuel Alito’s house. (Alito, vital specimen of right-wing masculine energy that he is, blamed his wife.) That sort of open partisanship is a bit inconvenient for Roberts, however, who during his confirmation hearing famously compared justices to umpires calling balls and strikes in a baseball game. A more appropriate sports analogy for how Roberts and his right-wing comrades approach cases appeared a few months later, when several referees in the Italian soccer league were implicated in fixing matches for top teams during the 2006 Calciopoli scandal.

Trump has threatened to criminally prosecute those who criticize the Court, declaring that they should be “put in jail,” consistent with the right-wing belief that the right to free speech allows people to say only what conservatives want them to say. But as is often the case, no critic of the Court could implicate the conservative majority’s partisanship as effectively as Trump’s own behavior.

In his own way, the president agrees with the liberal critique that the Roberts Court is a partisan institution, with a majority that will generally do what he wants. He just believes that this is both good and exactly how it should be. Perhaps the only person who is still in the dark about what the Supreme Court has become is Roberts himself.