op-ed

Alex Aronson and Lisa Graves: How the Roberts Court Eroded Democratic Institutions and Brought Back Trump

By Alex Aronson and Lisa Graves

As President-elect Donald Trump and his agents of vengeance and chaos careen towards the White House, President Biden’s recent pardon of his son, Hunter Biden, prompted alarm from those worried about what it augurs for the health of our institutions. After he had promised not to pardon his son, performative outrage from Republicans and Fox talking heads over Biden’s reversal was to be expected. But media voices, too, like Politico’s head of news, Alex Burns, decried the pardon as an “ostentatious vote of no confidence in the institutions that his successor most obviously intends to attack.” Some Democrats joined the fray as well, arguing that Biden’s action “further erodes Americans’ faith that the justice system is fair and equal for all,” as Colorado Senator Michael Bennet put it.

But putting aside the merits of the Hunter Biden pardon—and there may be good reasons to criticize it, particularly as to the junior Biden’s admitted tax crimes—this institutionalist hand-wringing misses the point entirely. After all, what remaining confidence should Americans have in these institutions? When all available evidence points to the contrary, what faith should anyone have that the justice system is fair and equal for all? At this point in the American experiment, it’s time for these voices to relinquish the notion—disproven time and again—that our institutions, as if sprinkled by Founding Fathers’ fairy dust, are freestanding actors capable of saving us.

The fish rots from the head. On the U.S. Supreme Court—the institution to which norm-clingers will now turn as the last best hope to check unconstrained Trumpism—Chief Justice John Roberts and his Republican majority have spent decades systematically dismantling the guardrails of American democracy. Itself the product of unprecedented norm-breaking—encouraged by a fifty-year special interest campaign designed to weaponize the judicial branch—it is the Roberts majority that has hastened our endemic institutional collapse.

We can draw a straight line, for example, from the Roberts Court’s 2010 Citizens United decision, which invalidated Congress’s bipartisan campaign finance limits on the farcical premise that independent expenditures could not be corrupting, to the imminent shadow presidency of erratic mega-billionaire Elon Musk, Trump’s biggest outside spender. Citizens United set the stage for the proliferation of political nonprofits and the establishment of Super PACs, giving oligarchs like Musk a megaphone loud enough to drown out ordinary voters. The decision turbocharged Trump’s rise, allowing his allies to flood the airwaves with disinformation and propaganda, meanwhile trapping Democrats in a system of corporate-funded campaigns that has eroded their ability to represent the working class.

Three years later, in Shelby County v. Holder, John Roberts completed his career-long vision quest to dismantle the Voting Rights Act, invalidating its preclearance requirement for states with a history of racial discrimination. Erasing the national consensus first achieved in the bloody crucible of the Civil Rights Era and repeatedly reaffirmed by near-unanimous bipartisan Congresses, Roberts deemed racial discrimination a relic of ancient history, declaring that “nearly 50 years later, things have changed dramatically.” A flood of Republican state voter suppression laws followed, funded, and orchestrated by the same interests to which Roberts owed his majority. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” Justice Ruth Bader Ginsburg warned in her searing Shelby County dissent. But soaking us was the whole point.

The downpour continues. Final results for the 2024 House elections were tallied recently, and Republicans will owe a razor-thin 220-215 majority to the three seats the GOP flipped thanks to the North Carolina legislature’s brazenly partisan gerrymander, a move blessed by the Supreme Court’s Republican justices’ 2018 decision in Rucho v. Common Cause. In that case, the Roberts Court—so power-hungry that leading legal scholars have dubbed it the “Imperial Court”—conveniently found modesty, ruling that partisan gerrymandering, a practice dominated by norms-be-damned Republican state legislatures, presented a “political question” that was outside their purview to resolve.

The Roberts Court’s institutional wreckage—and the breakdown of functional, responsive government it has facilitated by its elected Republican allies—is almost too voluminous and overwhelming to synthesize or fully process. But again, that’s precisely the point. Depleted and dismayed by government’s resulting inability to serve their needs, more and more Americans are rejecting the broken system entirely. And when Trump took up the classic tools of an authoritarian strongman to exploit this understandable unrest, it was the Roberts Court—with its Project 2025 faction waiting in the wings—that was there to grease the skids for what threatens to be American democracy’s ultimate demise.

Beset by their own historic corruption scandals—including the flagrant, disqualifying public display of MAGA allegiance by Justice Samuel Alito that the Times uncovered—the Supreme Court’s Republican justices tipped the scales to aid Trump at every turn. Looking every bit the imperial court, the justices abandoned any pretense of their professed commitment to “originalism.” First, they stepped in promptly to rebuke the Colorado Supreme Court’s ruling that Trump was ineligible for the state’s ballot under the 14th Amendment, which bars from federal office anyone “who, having previously taken an oath” as an “officer of the United States” to support the Constitution of the United States, “engaged in insurrection or rebellion against the same.” Conspicuously ducking the question of whether Trump had indeed engaged in insurrection, the Roberts majority “concocted an argument, not raised by any of the parties, that states specifically lack the power to consider this part of the Constitution in making ballot access decisions,” as one prominent conservative originalist scholar put it.

In July, months later—on the very last day of its term, and following an inexcusable delay that proved the death knell of Jack Smith’s prosecution—the Republican justices voted en bloc to not only grant Trump far-reaching immunity from criminal prosecution for his efforts to steal the 2020 election, but hand future presidents sweeping “conclusive and preclusive” powers that shake the bedrock of the framer’s delicately balanced separated powers design. The rest is history: Trump escaped accountability for his crimes, won the election unencumbered by the electoral anchor of a prison jumpsuit, and now stands poised, despite his campaign disclaimers, to implement a pluto-theocratic Project 2025 agenda that bears striking—and not coincidental—resemblance to the Roberts Court’s own record of activist constitutional policymaking.  And while the Roberts Court’s Trump v. United States decision has been roundly condemned by legal scholars of all stripes, its role in Trump’s victory has gone largely ignored in the election post-mortems.

In two months, Americans will watch Chief Justice Roberts swear Trump in for a second term that is, in meaningful part, the product of Roberts’ handiwork. For those concerned about the health of our democratic institutions, that is the norm-busting pardon we should be most alarmed about.


Alex Aronson is the co-founder and executive director of Court Accountability and former chief counsel to US Sen. Sheldon Whitehouse (D-RI). Lisa Graves is the executive director of True North Research and president of the board of the Center for Media and Democracy; she also served as the host of COURIER’s limit podcast series, Grave Injustice.

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