THE US CONSTITUTION BETRAYED: JOHN ROBERTS' APOSTASY OF DEMOCRACY.

During Roberts’s time in the Reagan Administration, a new conception of government was firing up young conservative warriors in the Justice Department.

 It wasn’t just the President’s antipathy to the federal bureaucracy in general, and to independent agencies such as the Federal Trade Commission and the National Labor Relations Board in particular. It was the notion that the power of the Presidency needed strengthening. In the post-Watergate, post-Vietnam era, this thinking went, Congress had gone too far in constraining the executive branch with presumptuous reforms that aimed to secure greater accountability and transparency from the White House. In a memoir, William French Smith, Reagan’s Attorney General, listed many changes he despised, including “the so-called Ethics in Government Act,” the legislative veto, the War Powers resolution, and “restrictions on the president’s appointment and removal powers.” Smith wanted the Reagan Administration to push harder for “the concept of presidential power.” But the Justice Department, he wrote, “could at least take comfort in the fact that we constantly hammered away at this principle.”

Roberts did some of the hammering. In an article that he ghostwrote for Reagan, he argued that the Presidency was endowed with a kind of authority that other government branches were not. “Other than the Vice President with whom he runs, the President is the only official in our government elected through a process involving all the voters,” Roberts wrote. “Only the President can claim to speak for all the people.” In a 1983 memo for Fielding, Roberts mused, “The time is ripe to reconsider the Constitutional anomaly of independent agencies” and “bring them back within the executive branch”—even if “more timid souls” see this as too “provocative.”

In the fifties and sixties, conservatives had tended to be suspicious of an imperial Presidency. But that perspective shifted when they began to view expanded executive power as a means of curbing environmental and economic regulation, civil-rights enforcement, and the federal bureaucracy. John Dearborn, a political scientist at Vanderbilt, told me that, by the seventies, “you have the Republicans starting to realize that they can win the Presidency at a time when they’re not really competitive for winning Congress. So, somewhere along the line, they start to see that, in terms of their interest in changing regulation or controlling bureaucracy, the Presidency is a potentially useful vehicle.”

The conservative argument for a strong Presidency became known as the unitary-executive theory. Promoted by the Heritage Foundation and the Federalist Society, and by Smith and his successor, Ed Meese, it held that the President had the sole power to appoint, direct, and fire high-level federal officials. Amanda Hollis-Brusky, the Pomona professor, thinks that the unitary-executive theory has roots in Cold War anxieties—“the idea that we need to empower a strong Presidency to protect free markets and counter godless Communism.” Then, after Watergate, Hollis-Brusky said, “it’s like the crown is shattered, and you have people like Robert Bork and Antonin Scalia, who are besties, becoming figureheads who pick up the pieces and catalyze a movement to rebuild the Presidency.” She went on, “What it becomes is an excuse for the executive branch to ignore and circumvent—to engage in wars and military conflicts without consulting Congress or even reporting to it. It becomes a way for the U.S. to effectively have a monarch.”

Proponents of the unitary-executive theory also tend to be originalists, and many claim that their robust view of Presidential power was shared by the Founders. They point to the opening of Article II of the Constitution—“The executive Power shall be vested in a President of the United States”—and to the phrase, also in Article II, “he shall take Care that the Laws be faithfully executed.” They also cite a 1789 congressional debate during which James Madison said, “I think it absolutely necessary that the President should have the power of removing from office.” (His reasoning was complicated and, in fact, sounds skeptical of an overweening executive: “It will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct.”)

Many legal scholars regard these examples as slender reeds on which to build an entire theory of Presidential power. Andrea Katz, a law professor at Washington University, said, “To me, if we’re being originalist, ‘he shall take Care that the Laws be faithfully executed’ means a duty to follow Congress’s orders, not a power to interpret the laws as the President decides.” In a recent essay, Caleb Nelson, a law professor at the University of Virginia who is a former Thomas clerk and a leading originalist, wrote, “Article II vests the executive power in the President. But Congress is in charge of creating offices within the executive branch, and the Constitution does not give the President unilateral power to dictate who will fill those offices or what their authorities and duties will be.”

For many veterans of the Reagan Justice Department, though, the unitary-executive theory is an article of faith. Cass Sunstein, a Harvard law professor whose most recent book is about the separation of powers, worked in the Justice Department’s Office of Legal Counsel during Reagan’s first year, and remembers there being “overexcited clarity” about the truth of the theory. There was much discussion of two contradictory Supreme Court cases: Myers v. United States (1926) and Humphrey’s Executor v. United States (1935). In Myers, the Court ruled that the President had the authority to remove appointed officials without congressional approval. (The opinion was written by Chief Justice William Howard Taft, the only Justice who had also been President. Roberts said recently that, though he’d once thought of Taft as “just sort of some fat plutocrat,” he was “probably the most extraordinary public servant this country has ever had.”) In Humphrey’s Executor, the Court affirmed that Congress could create independent agencies, and that their independence was constitutionally protected.

In a recent Substack post, Sunstein recalled that he and many others at the Office of Legal Counsel believed “that Myers was right, a shining constitutional star, and that Humphrey’s Executor was wrong.” Sunstein, who no longer fully endorses the unitary-executive theory, wrote that he now sees a “classic process of group polarization,” explaining, “Our discussions with one another led us to be more unified, more confident, and more extreme in our commitment to a Unitary Executive.”

As Chief Justice, Roberts has given the theory teeth. Indeed, the Columbia University legal scholar Gillian Metzger has written that the Roberts Court has “an obsession” with executive power. In 2010, in one of several related opinions written by Roberts, the Court asserted the authority of Presidential appointees to remove lower-ranking agency officials at will. In 2020, it expanded the President’s reach even further, with Roberts writing that Trump could fire the director of the Consumer Financial Protection Bureau without cause. Roberts, echoing his remarks from the eighties, contended that “the Framers made the President the most democratic and politically accountable official in Government,” adding, “Only the President (along with the Vice President) is elected by the entire Nation.”

Then, in 2024, Roberts wrote a decision on executive power whose sweep surprised even people who had been closely following his jurisprudence. In Trump v. United States, Roberts, writing for a 6–3 majority, concluded that former Presidents were entitled to “absolute immunity” from criminal prosecution for any actions taken during their Presidency which were within their core constitutional authority (including pardons)—and to “at least presumptive immunity” for any action that could be construed as official. Anything less would hobble the Presidency and risk making politically motivated prosecutions of former Presidents “routine.” Roberts wrote, “The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.” The case in question, in which Trump was facing prosecution for allegedly interfering with the transfer of power after the 2020 election, was sent back to a lower court, which dismissed it, clearing the runway for Trump’s reëlection in 2024. But the future implications of Trump v. United States were bigger, as the dissenting Justices argued. When a President, Sotomayor wrote, “uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune, immune, immune.”

Roberts clearly thought that he’d written an opinion for the ages, and he may have been disappointed when Trump v. United States was not widely regarded that way. For one thing, he assigned himself the opinion—he does so only a few times each term—and wrote at length. He chided the three dissenters for striking “a tone of chilling doom” that was “wholly disproportionate.” According to reporting for CNN by Biskupic, he didn’t even try to bring the liberals aboard through compromise—it was a “hard-and-fast 6–3 vote” from the day the Justices first met in private about the case. Instead, Biskupic revealed, Roberts tried to persuade his colleagues “not to think about” Trump and “to look toward the future.” In his opinion, he wrote, “Unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies.” Barrett issued a partial concurrence that laid out important exceptions to blanket immunity. She wrote that, since “the Constitution, of course, does not authorize a President to seek or accept bribes,” the “Government may prosecute him if he does so,” and the prosecution would have to be allowed to look into his motives. Context mattered. Roberts didn’t incorporate such caveats. His opinion argues that courts, even when trying to determine whether a President’s act was official or unofficial, cannot inquire into motives.

Roberts did allow that a former President was prosecutable for private acts committed while he held office. The types of crimes weren’t spelled out, but imagine that a President, say, poisoned his estranged spouse and concealed the crime until after leaving the White House. Trump had argued that if a President wasn’t successfully impeached while in office there could be no criminal prosecution of him for anything. Roberts didn’t go that far, and some commentators hailed the opinion as a delicate compromise. In the National Review, the lawyer and conservative activist Carrie Campbell Severino praised Roberts for “balancing the commonsense notion that presidents are subject to liability for private actions with the constitutionally inescapable position that presidents must be able to exercise Article II power without fear of criminal liability.”

This assessment wasn’t universally shared among conservatives. Jack Goldsmith, a Harvard law professor who served in the George W. Bush Administration, warned that the opinion’s “maximalist” conception of executive power was a sword for future Presidents of both parties to wield against other branches of government. Stephen McAllister, a University of Kansas law professor and a former Thomas clerk who served as a U.S. Attorney in the first Trump Administration, told me, “There’s not a single provision in the Constitution that suggests immunity, frankly, for anybody. If you’re a true originalist, your only argument is ‘Well, the Framers all understood this to be the case, even though nobody ever said it, and even though nobody thought to put it in the Constitution.’ ”

This past term, Roberts finally got the chance to overturn the ninety-year precedent of Humphrey’s Executor. Trump v. Slaughter was brought by a Federal Trade Commissioner named Rebecca Kelly Slaughter, whom Trump had appointed to fill a Democratic seat on the Commission during his first stint in office and had fired without cause during his second. (By law, the F.T.C. must have both Democratic and Republican members, all of whom are nominated by the President and confirmed by the Senate.) The Court, in a 6–3 opinion written by Roberts, ruled that the President could dismiss the Commission’s appointees at will. Roberts’s opinion took no heed of the current President’s autocratic impulses. In a blog post, Eric Berger, a law professor at the University of Nebraska, argued that, although “consequentialist reasoning” should not “govern constitutional decision making,” it is “notable that the Court would extend to the President nearly unlimited control over previously independent agencies without saying a word about what the decision might do to our democratic order at this particular moment.” In another case this term, involving Trump’s firing of the Federal Reserve Board commissioner Lisa Cook for allegedly committing fraud on mortgage documents—she denies this—the Court carved out a single exception. It would simply be too disruptive to financial markets to allow such firings at the Federal Reserve Board. (On August 5th, the White House initiated a fresh campaign against Cook, demanding that she answer questions about the fraud accusations within three weeks.)

Trump was thrilled with the Slaughter decision. On Truth Social, he posted, “It is such an Honor to be the sitting President who won this Historic and Unprecedented Ruling, one of the most important ever given with respect to Presidential Powers.” Although Roberts is presumably gratified, too, history’s little joke is that the President currently enjoying this generous new interpretation of his powers is surely not the mannerly, norm-abiding Republican Roberts had in mind decades ago. Trump, a vengeful chaos agent, has taken the Court’s rulings on executive power as a license to obliterate entire departments, gut the federal workforce, fire officials at independent agencies designed to be insulated from political pressure, and treat the D.O.J. as his personal law firm and police force.

Have these tumultuous real-world consequences unnerved Roberts? Perhaps not. Michael Luttig said, of the Presidential-immunity case, “There is no evidence whatsoever that the Chief Justice regrets that abhorrent decision.” But Nelson, the originalist at the University of Virginia, wrote in his recent essay that “more than one member” of the First Congress had “warned against interpreting the Constitution in the expectation that all Presidents would have the sterling character of George Washington.” One of Roberts’s former government colleagues told me, “John and I came of age as lawyers in a time when you just couldn’t imagine a lot of the stuff that happens today. He would never acknowledge it, but I think a lot of this stuff is painful for him.”

But Michael Dorf, at Cornell, told me that, given how relentless Trump has been in exerting Presidential power, it’s naïve to focus on the occasional times when the Court has reined him in. “If an Administration is really pushing the edge,” Dorf said, its record of wins and losses means something very different than it would for “a normal Administration.”

In 2023, the Times reporter Linda Greenhouse pointed out how much of “the robust conservative wish list that greeted the new chief justice 18 years ago” had been fulfilled: “Overturn Roe v. Wade. Reinterpret the Second Amendment to make private gun ownership a constitutional right. Eliminate race-based affirmative action in university admissions. Elevate the place of religion across the legal landscape. Curb the regulatory power of federal agencies.” In the three years since, the Court has delivered even more wins for the movement—rulings undercutting the rights of trans people and immigrants, vitiating the Voting Rights Act, and expanding Presidential power. At the July event where Kagan pushed back against the notion that the Court had been a rubber stamp for Trump, she also said, “Is this Court very conservative? Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes.”

As it does for many people, the U.S. probably feels a little rougher around the edges for John Roberts than it used to—harsher, less content, more polarized. Armed National Guard troops remain stationed around Washington, D.C., a year after they were deployed. Some of Roberts’s Chevy Chase neighbors were no doubt fired from the federal government. Since the storming of the U.S. Capitol, on January 6, 2021, and a 2022 incident in which an individual was arrested with a pistol and a knife outside Kavanaugh’s home, D.C. residents don’t spot the Justices around town as much, not even at Starbucks. When the Justices do venture out, though, they’re more likely to be approached—and criticized. In May, 2025, Roberts said, “It’s getting worse, though, in general, just because the work of the Court is getting a higher degree of publicity.” At a recent public appearance, when a woman stood up to ask him to speak more loudly, he joked nervously that he’d thought it “was a protest.”

Still, if you were Roberts, you might justifiably feel, in the summer of 2026, that, along with your intelligence and ambition, your consistency had paid off. You might feel that you’d turned back the clock to pretty much where you wanted it. Whatever might be happening on the streets of American cities—or whatever the current occupant of the Oval Office might be like—constitutional interpretation was in safe hands at the highest court in the land. America was celebrating a birthday milestone, the Happenings were singing “See You in September,” and nothing could really go wrong. ◆

An earlier version of this article misstated the year in which Trump criticized John Roberts’s remarks about judges and partisanship.

Margaret Talbot joined The New Yorker as a staff writer in 2004. She is the author, with David Talbot, of “By the Light of Burning Dreams: The Triumphs and Tragedies of the Second American Revolution.”