The Trump era outpaces expectations. It routinely shows us that we can be abandoned by more institutions, and become much more fascist, much faster than we thought. The worst things happening for the worst reasons can feel hacky in fiction, but never in these United States. Yesterday’s scoffingly farcical explanation for some vile act will be topped by tomorrow’s leaked document.
Last weekend, The New York Times published a correspondence among the justices of the Supreme Court leading up to the court’s “shadow docket” decision voiding Barack Obama’s Clean Power Plan. In it, you can read as Chief Justice John Roberts avoids his colleagues’ unanswerable objections on the way to establishing a new rule to make sure that America’s fledgling and innocent fossil fuel industry wasn’t harmed by the judicial process. You will be unsurprised to note — as legal writer Chris Geidner does, at length and in detail — that all the worry about harms and all presumed procedural necessities have been flipped on their heads over the past year, as the court has enabled Donald Trump , Elon Musk and DOGE ’s harrowing of the government, irrespective of sense or statute.
This is Calvinball in action. The term refers to a game played between Calvin and Hobbes in their eponymous comic strip, where each player is entitled to make up any rule they want as they go — a more whimsical and childlike version of “ Everyone Is 12 ,” theory, but with the foundational precepts of, “Everything Republicans do is legal, and everything Democrats do is a crime.” And while there are many more books analyzing the hogwash underpinning “originalism” today than when it was coined, “it’s just Calvinball” is still the proven thesis. Roberts’ reputation has largely skated past what he does for a living. “Originalism” is old enough to vote now — this court’s efforts to prevent that sort of thing from happening notwithstanding — and older than the realization that John Roberts is a partisan goon with a rueful dad face . It helps that there’s much more connective tissue now between his pre-justice career explaining how to gut the Voting Rights Act and his post-confirmation career of gutting the Voting Rights Act. It also helps that his court voided the 14th Amendment’s section about denying office to people who foment insurrection against the United States in favor of a human cartoon who did it on live TV and spent weeks before and years after playing footsie while bragging about it.
The question was always why he would even bother. Owing partisan sympathies at the ownership and upper management level, general cowardice, an over reliance on access journalism to analyze a secretive court and, above all, a failure to grasp the right’s embrace of bad faith and criminal enterprise, Roberts’ reputation has largely skated past what he does for a living. Judges “calling balls and strikes” was absorbed so wholly into the discursive lexicon, as if commentators were just delighted to have more on-the-job argot, that it smothered any sense of it being a plain lie and sick joke for years after all signs pointed to both. Why blow the whole rigged game now? Why not just retire to collecting six figures for talking to Exxon employees about “character” for 30 minutes at a time?
Maybe a guy who has spent his career evading scrutiny for being a party operative wanted to make sure he evaded scrutiny for everything else that comes after the gold watch. What better way to secure a future free from unwanted questions than by lining up a pardon with a crook who can’t get elected without you? As long as that guy hits the EJECT button at the last second before the impeachment conviction vote is certified, every moment up until then is open road, wind in your hair, driving the country all the way back to Jim Crow.
Roberts would have good reason to want to cover his exit. As with so many other avatars of conservative leadership, he and his colleagues have, as rational individuals in exercise of their liberties, exhibited a compelling argument for addressing systemic rot. Amy Coney Barrett demonstrated her contempt for the franchise as part of the Bush v. Gore squad, Neil Gorsuch comes from a family of GOP lifers, and the rest are crooked enough that the Amish could screw them into a few posts and hold a whole barn together. Roberts himself saw $10 million accrue to the benefit of his household via the headhunting work of Jane Sullivan Roberts, who recruited legal candidates both from the government and for firms that do work before the Supreme Court. It turns out that there is a deep economic and personal connection between Mr. John Roberts and Mrs. John Roberts. The Constitution specifies that there be a Supreme Court, not this Supreme Court. That’s the nicest it gets, and we’re all lucky that your uncle who regurgitates Fox News through a thesaurus, Antonin Scalia, has been dead long enough that we don’t have to find how many figures deep he was into kickbacks from the bresaola lobby. Of the living, Brett Kavanaugh took the gig after five figures of his debts mysteriously disappeared and after the FBI stood behind the couch, announced that it was going to investigate the rape accusations made against him, then pretended to walk downstairs. Samuel Alito is a dimwitted and lazy ideologue who would drive to the office in a Cybertruck wrapped with the names of all his sponsors if it meant he didn’t have to pay for any of it himself, including gas or tolls. The only way a billionaire could underwrite any more of Clarence Thomas’ life is if they cloned him and gifted Baby CT a college fund and a Brazzers subscription. The canny hobbyist move for those watching the degradation of the Republic from home — and/or expecting to have to fund 2026-27 via DraftKings and FanDuel — is to start betting on what charges Barrett and Gorsuch will eventually get rung up for. Lower expectations now and dare reality to make you raise them. The Democrats , meanwhile, should proceed as if John Roberts’ actions were those of a criminal co-conspirator. This is not a difficult supposition for voters, none of whom requires a clerkship and three years of legal education to realize that the correct reading of the Insurrection Clause of the 14th Amendment is not, actually, “the opposite of what it says.” No one is wrestling with the implications of a justice who makes up his mind before a case he isn’t even presiding over ends. No one — least of all someone taking an alternate route home to swing by the station with gas still under $5/gallon — is surprised that neither heaven nor earth nor the law itself can remain unmoved by conservative justice when fossil fuel companies are hurting. As a sales pitch, the relationships here are only slightly more complicated than the one between water and wetness.
The Times’ reporting confirms what the public record already showed: that Roberts has every intention of continuing to treat Democratic policy with the presumption of illegality and no need to wait on the facts to rule. He has signaled that he will get in the way of any coming reforms, and he has already delegitimized the court. Now is the time to complete that process in the court of public opinion, before they claim the right to rescind laws passed by Democratic Congresses because Clarence Thomas found a particularly piquant citation in his battered copy of “Fanny Hill.”
It’s hard to rule against your own investigation from a jail cell. But Democrats don’t have to campaign on going that hard. The Constitution specifies that there be a Supreme Court, not this Supreme Court. The Democrats just have to establish the rhetorical stakes now that the personal and procedural corruption of the Roberts Court precludes its inclusion in a future just society. The Biden administration already proved that this country can’t be rescued from Trumpism on the assumption that everyone is all better now and won’t do that again. The next Democratic administration must begin by scouring every participant in the GOP ’s public corruption from public life, stripping them of their assets and depriving them of their freedom with the same determination with which they denied every human they shackled and shipped 70 hours to a third-party black hole of human rights. That’s what you do with criminals.
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