Forgotten in the arc of John Roberts’s nearly two decades as chief justice of the United States is his role, behind the scenes, to herald the result in Citizens United v. Federal Election Commission. No, he didn’t write the ruling that ushered in our current era of corporations and billionaires buying the presidency of the United States and other offices. But he can be credited with moving the chess pieces that made that sweeping landmark, authored by Justice Anthony Kennedy, possible.
One version of the story finds Roberts so spooked by an unpublished dissenting opinion by outgoing justice David Souter that the chief moved heaven and earth so that that document would never see the light of day. In it, Souter, a Republican and a big defender of campaign finance laws, called out Roberts for twisting the Supreme Court’s own internal rules to arrive at a far-reaching outcome in an otherwise small-bore dispute—in this case, a decree that the First Amendment places no limits on so-called “independent” corporate and union expenditures in our elections.
That’s not the legal question the Supreme Court had been asked to decide. And so other versions of this palace intrigue find Souter pleading with Roberts, and the rest of the court, to not overrule prior precedents curbing the influence of money in politics—and to rehear the case so that those precedents could get a second look and a fresh round of briefing and argument. Souter got his parting gift: On the final day before the Supreme Court broke for its summer break in June 2009, Roberts announced that the case would be reargued at a later hearing. Immediately thereafter, as his last order of business that day, the chief also announced “with sadness that this is the last session in which our friend and colleague, Justice David Souter, will be on the bench with us.” Problem solved. By the next January, Citizens United would become the law of the land.
This is but one data point for how Roberts, more than any other politician in the United States, has set the stage for Donald Trump’s disruptive second presidency—one far more destructive than the first, and yet distinct in kind from any other in modern history in that the president truly feels unbound. And in advancing an extreme vision of presidential authority, he’s no longer ruling over Washington and the nation as a lone head of state. Instead, the executive power, which Article II of the Constitution vests in one president of the United States, has been freely shared with billionaire and mega-millionaire ruling partners, Elon Musk chief among them.
Trump’s Cabinet, the wealthiest in history, at least holds legitimacy in that its members, like Linda McMahon and Howard Lutnick, were approved by the Senate, as the founding document instructs. Not so Musk. The Tesla and SpaceX chief, who donated a quarter-billion dollars to Trump’s reelection effort and over time has received tens of billions in government contracts from a multitude of agencies, operated in a constitutional vacuum, largely unconstrained by law or rules of ethics. As the leader of the inaptly named Department of Government Efficiency, which is neither a congressionally approved department nor efficient by established metrics, Musk—who recently split with the president—was allowed to wield a breathtaking level of authority over the executive departments and other agencies he’s beholden to, above and beyond that of the Cabinet itself.
Much of this unchecked lawlessness is water under the bridge by now, as judges, save some exceptions, have been too slow to stop the bleeding or police abuses, whether that be funding cuts Congress never approved or shocks to the federal workforce. Sensing early on how this unholy alliance of money and power flew in the face of rules Roberts and his court have erected for “officers of the United States,” as spelled out in the constitutional text, a group of Democratic attorneys general cried foul in federal court: “Although our constitutional system was designed to prevent the abuses of an 18th-century monarch, the instruments of unchecked power are no less dangerous in the hands of a 21st-century tech baron.”
One can only wonder what Roberts thinks of a duly elected chief executive and an unelected de facto prime minister leading the charge on mass firings across federal agencies, dismantling decades-old departments, and impounding appropriations that by definition are already the law. Roberts’s own branch of government is not exempt from DOGE’s intrusions; judges, law clerks, and court employees have all been put on high alert over the Trump administration’s documented encroachment even on day-to-day court operations.
These breaches of the separation of powers, both real and imagined, and the anti-constitutional monster spreading its tentacles across Washington, would’ve horrified the Founders. But that’s yet another consequence of unlimited wealth corrupting our politics. Democracy gives way to an oligarchy; that, in turn, may buy you a quasi-monarchy with few guardrails. Roberts and the other justices responsible for Citizens United may well believe that “independent expenditures do not give rise to corruption or the appearance of corruption,” as they insisted at the time. The Trump-Musk reign of chaos has put that idea, fanciful then and now, to rest.
This corrupt bargain should haunt Roberts in other ways. During the presidential transition, as if anticipating the legal resistance to the incoming Trump administration, the chief saw the future when he dedicated his year-end report on the federal judiciary to the threats to their independence judges face day-to-day. The report, which doesn’t mention Trump by name, is nonetheless replete with not-so-veiled allusions to what the president and his supporters have visited upon judges since he took office—including threats of violence, intimidation, and disinformation about what individual court rulings mean or require. “These dangerous suggestions, however sporadic,” he wrote, “must be soundly rejected.”
Defiance, which has been a theme of the past six months, hasn’t abated. And that’s because one element Roberts didn’t foresee was that Trump wouldn’t be the only one with pitchforks out against judges. Musk, other administration officials, and far-right figures who have grown in influence on X and in the president’s circle have also joined this high-tech lynching, to borrow from Clarence Thomas. When an incensed Stephen Miller grossly misrepresented a Supreme Court ruling that urged the Trump administration to “facilitate” the release of Kilmar Abrego Garcia, a Maryland man who had been unlawfully sent back to a prison in his native El Salvador, that only set the stage for more defiance by the White House.
