How the Roberts Court's "neutral" methods keep landing on the same political shore—and why its new vision of the presidency looks a lot like the king the Framers warned about
By a regulated optimist who grades in pencil, votes with both hands, and still believes maps should tell the truth.
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I. The promise and the pattern
Call it the constitutionalist's promise: decide by text, history, and structure rather than by vibe or partisan appetite. In principle, that's healthy. In practice, on the current Supreme Court, the methods—"history-and-tradition" tests, a swollen major questions doctrine, the curt rejection of agency expertise, a wary eye toward rights unlisted in 1791—deliver outcomes that lean the same direction over and over: weaker federal regulatory power, thinner civil-rights tools, broader religious-speech carve-outs, fewer judicial brakes on partisan mapmaking, and (as of 2024) an expansive immunity that insulates the presidency from criminal process for "official acts."
If that looks less like neutral method and more like one-way constitutional traffic, you're not imagining things.
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II. What the founders actually wrote about executives
Hamilton's Federalist 69 was practically a sales pitch to anxious citizens: the new President would be nothing like a king. No suspending of laws; no permanent war power; subject to impeachment; constrained by Congress and courts. The essay is pedestrian on purpose—checks, not coronations. It is the governing text every time a modern Court inches toward a sovereign executive.
Which is why the 2024 decision in Trump v. United States startled so many lawyers: the Court announced absolute criminal immunity for a President's "core" constitutional acts and presumptive immunity for all "official" acts—doctrinal armor no citizen enjoys and no framer advertised. Dissenters warned it effectively lifts a president "above the law." Read Hamilton; then read that holding; the dissonance is audible.
Layer on Trump v. Anderson, which foreclosed state enforcement of the Fourteenth Amendment's disqualification clause against a presidential candidate, and you glimpse the new geometry: when institutional lines are fuzzy, the Court's thumb tends to favor presidential latitude, not interbranch restraint.
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III. Three moves behind the curtain
1) History-and-tradition as throttle
When the Court abandoned tiered scrutiny in Bruen and demanded that gun regulations match the Nation's historical tradition, it turned constitutional litigation into an antiquarian contest—and made modern public-safety judgments suspect unless they rhyme with 18th- or 19th-century practices. That methodology reliably narrows government power in areas (guns) prized by the conservative legal movement.
In Dobbs, the same historical lens declared there is no constitutional protection for abortion because the right lacked deep roots in 1868—the year many women could not vote, serve on juries, or own property on equal terms. "Tradition," used that way, becomes not a curb on judicial will but a quiet instrument for ideological results.
2) The anti-administrative state trilogy
• West Virginia v. EPA constitutionalized the major questions doctrine: when an agency claims big authority without unmistakably clear statutory text, the answer is no.
• Loper Bright then buried Chevron, ending four decades of judicial deference to agencies' reasonable readings of ambiguous statutes.
• Jarkesy (jury trial for SEC civil-penalty fraud cases) and Corner Post (APA challenges accrue when injured, not when rules are issued) together hamstring civil enforcement and reopen long-settled regulations.
Each may be defensible in isolation; together, they strip Congress's delegates, empower judges, and, in effect, shift policymaking toward courts and the White House's pen.
3) The procedural accelerant: the emergency docket
The Court's "shadow docket"—late-night or short-order rulings with scant reasoning—has become a venue for high-impact policy: letting Texas SB 8 take effect despite then-controlling precedent; green-lighting or halting nationwide rules with cryptic paragraphs. Even justices have warned this isn't the Court's best work; scholars have documented the tilt. Procedure, here, is substance by other means.
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IV. "Originalism," but the river only flows one way
A brief tour of merits outcomes:
• Shelby County disabled the VRA's preclearance engine; Rucho shut federal courts to partisan gerrymandering claims; SFFA barred race-conscious admissions nationwide; 303 Creative expanded compelled-speech limits against public-accommodations laws. All four track long-standing conservative policy aims.
• Recent criminal-law decisions (Fischer) narrowed a key obstruction statute used in Jan. 6 cases. Taken with Trump v. United States, criminal accountability for executive wrongdoing is now harder.
There are exceptions worth crediting: Moore v. Harper rejected the most aggressive version of the "independent state legislature" theory, and Allen v. Milligan preserved Section 2's vote-dilution framework. But the outliers prove the pattern; they read like tactical restraint, not trajectory change.
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V. The constitutional math of power (why this adds up to more presidency)
If courts gut agency leverage (major questions, Loper), hobble enforcement (Jarkesy, Corner Post), shrink civil-rights backstops (Shelby, Rucho, SFFA), and then grant the President an immunity hedge broad enough to shelter "official" pressure campaigns (Trump v. United States), you haven't reduced government; you've reallocated it—from Congress and expert agencies toward a White House less answerable to law and toward judges who self-assign the last word.
That is the opposite of Hamilton's sales pitch. Federalist 69 promised an energetic executive bound to law and checked by coequal branches; the Court's new synthesis risks a sovereign executive buffered by courts that distrust everyone's discretion but their own.
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VI. The honesty test for "neutral methods"
Good judging is not about balancing ideological quotas; it is about methods that constrain the judge. Ask three questions of any jurisprudence that advertises neutrality:
Does it travel? If "history" tightens limits on gun regulation but gets looser when the question is executive insulation, that's not method; that's preference.
Does it generalize? If "no deference to agencies" becomes "great deference to presidents," you aren't limiting government—just choosing a branch.
Does it disclose power? Shadow-docket shortcuts in the highest-stakes disputes put outcomes ahead of reasons. Democracies need the reverse.
On this score, the Roberts Court's record is uneven at best.
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VII. The fix is institutional, not apocalyptic
We don't need to torch the Court to mend the Constitution's plumbing. Five doable repairs:
Congressional clarity: Draft with major questions in mind—express delegations for climate, AI, and public-health authorities; automatic report-and-renew clauses to cabin discretion while preserving capacity.
Immunity boundaries: Enact an Official Acts Accountability Act: fast-track panels of three district judges to adjudicate whether contested conduct is "official," with interlocutory appeal, before immunity attaches. The Court invited lower-court sorting; Congress can specify it.
Shadow-docket sunlight: Statutory requirement that emergency merits dispositions carry vote lines and short reasons, sunset after 180 days unless the Court grants plenary review. (Even Justice Kagan has flagged quality concerns.)
Section 2 and elections: Codify Allen v. Milligan's standards; fund data and expert access for communities; clarify that race-conscious remedies are permitted when the Gingles test is met.
Ethics and recusal: Give the Court a statutory ethics code with an independent review mechanism—no different in principle from the rest of Article III.
These are not partisan asks. They're maintenance on a 236-year-old machine.
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VIII. Three scenes, one republic
• A classroom, October sunlight. First-years read Federalist 69 alongside the immunity opinion. The margin notes do not agree with each other, and that cognitive dissonance is the lecture.
• A water board meeting in Yuma. EPA staff say their authority to plan grid-level shifts is legally fragile after West Virginia; local officials ask who will price drought if the agency can't. The room understands "major questions" now means their questions.
• A late-night order. A statewide law flicks on; clinics close by morning; the docket shows five lines and no reasons. Citizens deserve more process than a push notification.
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IX. Epilogue: What "balls and strikes" would actually look like
A Court that really called balls and strikes would sometimes disappoint every team. It would wield history with humility; treat precedent as ballast, not décor; distrust every branch's overreach—including the presidency's; and write its emergency decisions in sentences the public can parse.
We can still have that Court. But we will not get it by pretending this one is already doing the job.
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Sources (validated)
• Trump v. United States (criminal immunity for official acts): Supreme Court slip opinion and analysis.
• Federalist No. 69 (Hamilton on the presidency vs. a king): Avalon Project, Yale Law School.
• Trump v. Anderson (states cannot disqualify presidential candidates under §3; power reserved to Congress): Supreme Court slip opinion.
• Bruen (history-and-tradition test governing gun regulations): New York State Rifle & Pistol Association v. Bruen, 597 U.S. ___ (2022).
• Dobbs (overruling Roe and Casey): Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022).
• West Virginia v. EPA (major questions doctrine): 597 U.S. ___ (2022).
• Loper Bright (Chevron overruled): Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024).
• SEC v. Jarkesy (jury trial for SEC civil-penalty fraud cases): 603 U.S. ___ (2024).
• Corner Post (APA claims accrue upon injury, enabling challenges to older rules): Corner Post, Inc. v. Board of Governors, 603 U.S. ___ (2024).
• Shelby County (Section 4(b) preclearance formula struck): Shelby County v. Holder, 570 U.S. 529 (2013).
• Rucho (partisan gerrymandering nonjusticiable): Rucho v. Common Cause, 588 U.S. ___ (2019).
• SFFA (race-conscious admissions barred): Students for Fair Admissions v. Harvard, 600 U.S. ___ (2023).
• 303 Creative (compelled speech limit vs. public-accommodations law): 303 Creative LLC v. Elenis, 600 U.S. ___ (2023).
• Fischer (narrow reading of §1512(c)(2) obstruction): Fischer v. United States, 603 U.S. ___ (2024).
• Whole Woman's Health v. Jackson / SB 8 (emergency orders allowing Texas law to take effect; shadow-docket debate): Supreme Court emergency docket analysis.
• Moore v. Harper (ISL theory rejected): Moore v. Harper, 600 U.S. ___ (2023).
• Allen v. Milligan (Section 2 upheld and applied): Allen v. Milligan, 599 U.S. ___ (2023).
This detailed analysis complements our broader examination of Roberts Court methodology. Part of the Sol Meridian series on American constitutional interpretation and democratic governance.