GENE NICHOL

With each passing week, Chief Justice John Roberts and his Republican colleagues bestow never-before-enjoyed authorities upon the Trump Administration. The plan seems to be – if we grant the usurper everything he dreams of, maybe he’ll leave the high court unmolested. The republic may fall but we’ll still have the cool robes and life tenure. John Roberts is becoming the Neville Chamberlain of post-democratic government in America.

Recent steps have allowed the executive branch to decimate the Department of Education, summarily fire tens of thousands of other civil servants, permit “third country removals” to notoriously dangerous nations despite demonstrated likelihood of torture, let the Department of Defense brutally dismiss even highly decorated transgender members based on orders of overt bigotry, terminated legally-assured protections for massive numbers of migrants from war-torn countries, and limited the essential reach of federal court decrees against the executive branch – frequently under summary and temporary orders with scant or non-existent justification. Each would have likely been illegal before Trump. Now they’re seemingly fine.

And the Court seems to have invalidated, after nearly a century of ready and repeated judicial embrace, the notion of independent federal agencies as well. In a brief, unsigned order, the justices just blocked a federal district court ruling preventing Trump from firing, contrary to statutory mandate, three of the five members of the Consumer Product Safety Commission. The landmark 1935 decision in Humphrey’s Executor v. United States was apparently cast aside. No limitations on presidential discretion are now to be tolerated – no matter how much sense it may make to remove certain types of administrative decision-making from the sway of politics. All power to Trump, regardless of the claims of text and history. You demand it, Mr. President, we deliver. Just spare us your wrath. We don’t even mind if you violate our decrees. Just lie when you do it. That seems easy enough.

All this begins, existentially, with Trump v. United States, where Roberts determined – despite the clear text of the Constitution, the bold declarations of the framers, over two centuries of judicial precedent, and the obvious contemporaneous understandings of every American president – that Donald Trump is beyond the reach of the criminal law. That we are no longer a government of laws, not men. The axiom had a great run, but 235 years is enough. As Trump puts it: “I have an Art. II, where I have the right to do whatever I want as president.” Ungrammatical perhaps, but he got the gist of it.

What amazes me most about Roberts’ judicial leadership is that, even after having had it proven to him, undeniably, that his judicial positions are disastrously untenable, he embraces them in a limp cling to power. Don’t believe your lying eyes, they seem to say. Trump summoned and instigated a violent attempt to overthrow the government of the United States. The bloody tirade occurred just down the street from the Court itself. It was on TV. But Roberts concluded the constitution had to bend to Trump instead of the other way around. That since we have a criminal seditionist as president, the legal system must be altered to accommodate the criminality. What worked for centuries will no longer do. 

Then Trump and Elon Musk demonstrated to the world the horrors of an unconstrained presidency – of a truly un-cabined “unitary executive”. As if those words could meaningfully define the permissible ins and outs of a massive modern administrative state not ever contemplated by the framers. Trump and Musk delivered a chain-saw laden regime of cruelty and stupidity that stunned, still stuns, the American people. Between those outrages and ICE’s constant thuggism, we are treated to a government that literally sickens our stomachs. So Roberts steps in, overruling Humphrey’s Executor, to make sure Trump’s discretion is additionally liberated. Really? Why, just because you’re scared of him?

It’s reasonable to wonder whether the rule of law can survive this. As John Roberts works to become our worst chief justice, will he also effectively become our last?

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.