August 19, 2026
John Roberts: Overruler in Chief
Alan B. Morrison*
Chief Justice John Roberts is known as a conservative justice, but conservatives are thought to maintain the status quo, not overturn it. Yet since the Chief Justice joined the Court in 2005, he and his colleagues have overturned the law in at least ten major areas, most recently in Trump v. Slaughter,1 in which the Court overruled the 1935 decision in Humphrey’s Executor v. United States2 that upheld the statute that limited the ability of the President to fire members of the Federal Trade Commission (“FTC”) and other independent agencies except for cause. What is most remarkable about these decisions to overrule precedent is the breadth of subject matters they entail and the importance of the issues, as well as the fact that, for most of them, the Chief Justice led the charge. This essay surveys these significant departures from precedent and what they reveal about Roberts’s tenure.
The Unitary Executive Theory
Slaughter represents one strong strain of Roberts’s beliefs: the unitary executive theory, under which the President is accountable for the operation of the entire executive branch, including what have been thought until now to be independent agencies like the FTC. Under this theory, to be able to carry out his responsibility that the laws be faithfully executed, the President must be able to remove all agency heads at will, even though Congress expressly denied him that power. The decision in Slaughter certainly applies to dozens of federal agencies, most of which were created by Congress after Humphrey’s Executor, in reliance on that ruling when designing these other agencies and assigning powers to them.
Slaughter was not the first unitary executive foray in the Roberts Court. In Free Enterprise Fund v. Public Company Accounting Oversight Board,3 the Court agreed that the Accounting Board could not have for-cause removal protection if the members of its superior agency––the Securities and Exchange Commission, which is structured like the FTC––could not be removed at will. And in the penultimate pre-Slaughter case, Seila Law LLC v. Consumer Financial Protection Bureau,4 the Chief Justice applied the unitary executive theory to set aside the for-cause protection of the director of that agency, while noting that a multi-member agency would not have suffered that same fate. This line of cases chipped away at removal protections, which Slaughter thoroughly dismantled this term.
The Chief Justice is also aware of the political ramifications of his rulings, and in Slaughter and the companion case of Trump v. Cook,5 which involved the Board of Governors of the Federal Reserve, he carved out an exception for the members of the Federal Reserve. He did so based largely on what he saw as analogies to the First and Second National Banks, which were historic exceptions that, in his view, sustained the differing treatment of the Federal Reserve.6 Justice Thomas (at length) and Justice Barrett (briefly) disagreed with that distinction,7 a view with which the Court’s three liberals would in all likelihood have concurred but did not, probably in order to preserve the Federal Reserve’s for-cause removal.
The Slaughter ruling almost certainly applies to the rest of the regulatory bodies in the executive branch, including adjudicatory agencies such as the Merit Systems Protection Board (“MSPB”), whose whole purpose is to guard against employer overreach in their treatment of federal employees. (The day after Slaughter, the Court denied review in a case brought by a Democratic member of the MSPB removed by President Trump.8) It remains uncertain whether the six-member, evenly divided Federal Election Commission will survive Slaughter. If it does not, that could significantly unbalance federal elections by allowing the President to pick all its members. Similarly in jeopardy are the Tax Court, the Court of Veterans Appeals, and the Court of Federal Claims, which are legally part of the Executive Branch, but are supposed to be neutral forums for those suing the federal government. Put another way, in terms of its impact on the federal government and everyone who must come in contact with it, Slaughter is a very big, very upsetting, and decidedly non-conservative decision.
Presidential Immunity
Closely related to Slaughter is the Chief Justice’s decision in Trump v. United States,9 in which he concluded that the Constitution gave the President virtually complete immunity from criminal prosecution for almost anything he did while in office. There was no prior Supreme Court decision to overrule, but the near-universal understanding of the potential vulnerability of former Presidents to criminal charges was encapsulated in the indictment and subsequent resignation of Richard Nixon for his role in Watergate. In addition, the Court’s holding in Nixon v. Fitzgerald10 that the President was absolutely immune from suits for money damages for acts within the “outer perimeter” of his official duties was narrower in scope than the Trump immunity ruling and was generally understood to leave open the door to criminal prosecution. Moreover, while not the equivalent of a Supreme Court decision, the Republicans who voted against Trump’s second impeachment did so in part because they noted that he was still subject to criminal prosecution for his conduct on January 6th.11
Election Law
Another area where the Chief Justice has been very aggressive in pushing his agenda is election law, both voting rights and redistricting. On the former, he wrote the opinion striking down the coverage formula in Section 5 of the 1965 Voting Rights Act for unconstitutionally singling out the states subject to it.12 When the Voting Rights Act, including the coverage formula, was most recently reenacted by Congress, the vote was nearly unanimous in both Houses.13 That provision required preclearance of changes in voting rules for covered jurisdictions, which were selected based on their history of discriminatory voting practices, and was by far the most significant weapon against efforts to dilute the voting strength of racial minorities.
Then this term, in Louisiana v. Callais,14 in an opinion that the Chief Justice joined, the Court put a virtual end to Section 2, the other major tool in the Voting Rights Act, by creating a nearly insuperable barrier to prove that the state had intentionally drawn district maps to disadvantage Black voters, despite decades of rulings enforcing that provision. That ruling was made possible by a prior Roberts decision, Rucho v. Common Cause,15 in which the Chief Justice slammed the door on all claims of political gerrymandering. That decision enabled legislators to claim, with complete impunity, that “it was just politics, not race, that produced these districts,” and, in turn, became the backbone for the decision to kill Section 2 in Callais.
One of the most significant overrulings in the Roberts era was in Citizens United v. Federal Election Commission,16 where the Court held unconstitutional a 1906 statute that banned all campaign contributions by corporations, including the ban on independent corporate expenditures, which had been sustained twenty years before in Austin v. Michigan Chamber of Commerce17 as applied to the same kind of expenditure. The Chief Justice wrote a concurring opinion, explaining why sometimes it was necessary to overrule prior decisions, stare decisis notwithstanding.18 It should not go unnoticed that the outcome of all three of these election cases favored the Republican Party, of which the Chief Justice was an active member before his appointment to the bench. And on the last day of the Court’s current term, it overruled its prior decision in Federal Election Commission v. Colorado Republican Federal Campaign Committee19 that had upheld the law that placed limits on the ability of political parties to coordinate their expenditures with candidates of their party, further eroding the limits on campaign spending.20
Affirmative Action
Another enormously significant overruling for which the Chief Justice is directly responsible concerns affirmative action. This began with his decision in Parents Involved in Community Schools v. Seattle School Dist. No. 1,21 involving Seattle and Louisville public schools, in which he famously said, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”22 Roberts has championed a colorblind view of the Fourteenth Amendment, which means an end to all programs that assist minorities in overcoming the long history of discrimination against them. He finally achieved his long-held goal in Students for Fair Admission, Inc. v. President & Fellows of Harvard College,23 where his opinion overruled all prior precedents and forbade any measure by a state or institution receiving federal funds that would provide any advantage to any racial (and by implication, gender) minority.
Reproductive Health
For the average American, the Court’s most controversial overruling was in the 2022 decision of Dobbs v. Jackson Women’s Health Organization,24 which overturned the abortion-protective decisions in Roe v. Wade25 and Planned Parenthood of Southeastern Pennsylvania v. Casey.26 The Chief Justice did not concur in the opinion that actually overruled those cases, which was written by Justice Alito, but he did agree that the abortion-restrictive Mississippi law at issue was valid despite the prior precedent. And, significantly, he did not suggest that he was prepared to sustain other anti-abortion laws: He just did not want to go beyond upholding this one at that time.27
The Second Amendment
The use of the Second Amendment to strike down laws that regulate the ownership and public possession of firearms was another area of the expansion of judicial muscle. Until the Court’s 2008 five-to-four decision in District of Columbia v. Heller,28 written by Justice Scalia, the general understanding of that Amendment was that it did not protect the private ownership of firearms. That view has now been shattered, and the Court has set aside most, but not all, of the laws that limit the possession of firearms,29 with more challenges to be heard by the Court next term.30
Judicial Deference
For many years, the decision in Chevron v. Natural Resources Defense Council,31 in which the Court directed the lower federal courts generally to defer to interpretations of federal statutes made by the federal agency charged with administering them, was framed in part as carrying out what the Court thought that Congress wanted (or would have wanted) the courts to do when its laws were unclear. Over the years, the Court imposed some limits on Chevron deference, and while Congress was often asked to step in, it declined to do so. Finally, in Loper Bright Enterprises v. Raimondo,32 the Chief Justice’s opinion for the Court overruled Chevron and the thousands of cases that relied on it.
Unlike some of Roberts’s overrulings, the effect of the Loper Bright decision, although largely supported by businesses and others aligned with the Republican Party, is at least partially neutral, as evidenced by its use in attacking actions of the Trump Administration that stretch the meaning of federal statutes to achieve its political ends. One such example is Learning Resources, Inc. v. Trump,33 in which the Court rejected the President’s attempt to use the International Emergency Economic Powers Act to impose billions of dollars of tariffs on goods imported into this country.
Labor Union Protections
Finally, in Janus v. American Federation of State, County, and Municipal Employees,34 the Roberts Court used the First Amendment to override state laws that enabled labor unions to require workers to pay representation fees in lieu of union dues, overruling its prior decision in Abood v. Detroit Board of Education.35 This was not a neutral decision, as it seriously disadvantaged labor unions and strengthened the hand of public and private management not only in collective bargaining, but also in elections and state and federal legislatures where union voices are often influential.
What does this mean for next term and beyond?
Of course, there are some cases that should be overruled, and that might include some of those discussed above. But what is striking about these overrulings is their number, the significance of the issues covered, and how closely the results align with the policies of the Republican Party that chose John Roberts to be the Chief Justice of the United States. Maybe these decisions are what the Chief Justice meant when he described the job during his confirmation hearings as a “calling balls and strikes,” but that is not what they appear to be to at least some observers.36 And they are not what most observers would call a conservative approach to judging.
If the past several terms are any indication, there is little reason to think that the Roberts Court’s less-than-conservative project of overruling precedent is finished. For the 2026 term so far, the Supreme Court has granted certiorari to over twenty cases, many of which will expound on areas of law where the Roberts Court has already created upheaval, including the Second Amendment, judicial review, and election law. Some of these upcoming cases may provide the Court with an opportunity to extend the principles reflected in the decisions discussed above, while others may test their limits. The cases coming next term will therefore be important not only for the particular issues they present but also for what they may reveal about Roberts’s overruling of precedent as a way to reshape American law.
*Alan B. Morrison teaches constitutional law at The George Washington University Law School.
Recommended Citation
Alan B. Morrison, John Roberts: Overruler in Chief, Geo. Wash. L. Rev. On the Docket (August 19, 2026), https://www.gwlr.org/overruler-in-chief/.
References
[1] 146 S. Ct. 2283 (2026).
[2] 295 U.S. 602 (1935).
[3] 561 U.S. 577 (2010).
[4] 591 U.S. 197 (2020).
[5] 146 S. Ct. 2234 (2026).
[6] Id. at 2242–45.
[7] Id. at 2262–63 (Thomas, J., dissenting); id. at 2281 (Barrett, J., dissenting).
[8] Harris v. Bessent, 160 F.4th 1235 (D.C. Cir. 2025), cert. denied, 2026 WL 1871323 (U.S. June 30, 2026) (No. 25-1110).
[9] 603 U.S. 593 (2024).
[10] 457 U.S. 731 (1982).
[11] Austin Sarat, This Is a Good Time to Revisit Mitch McConnell’s Jurisprudence and Thoughts About Presidential Immunity, Verdict (Jan. 2, 2024), https://verdict.justia.com/2024/01/02/this-is-a-good-time-to-revisit-mitch-mcconnells-jurisprudence-and-thoughts-about-presidential-immunity [https://perma.cc/67W4-22NG].
[12] Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013).
[13] R. Sam Garrett, Cong. Rsch. Serv., R47520, The Voting Rights Act: Historical Development and Policy Background 1 (2026).
[14] 146 S. Ct. 1131 (2026).
[15] 588 U.S. 684 (2019).
[16] 558 U.S. 310 (2010).
[17] 494 U.S. 652 (1990).
[18] Citizens United, 558 U.S. at 377–78.
[19] 533 U.S. 431 (2001).
[20] Nat’l Republican Senatorial Comm. v. FEC, 146 S.Ct. 2404 (2026).
[21] 551 U.S. 701 (2007).
[22] Id. at 748.
[23] 600 U.S. 181 (2023).
[24] 597 U.S. 215 (2022).
[25] 410 U.S. 173 (1973).
[26] 505 U.S. 833 (1992).
[27] Dobbs, 597 U.S. at 348.
[28] 554 U.S. 570 (2008).
[29] Most recently, in Wolford v. Lopez, 146 S. Ct. 2032 (2026), the Court struck down a Hawaii law restricting firearm possession on private property as unlawful under the Second Amendment.
[30] See Grant v. Higgins, 153 F.4th 213 (2d Cir. 2025), cert. granted, 2026 WL 1871312 (U.S. June 30, 2026) (No. 25-238).
[31] 467 U.S. 837 (1984).
[32] 603 U.S. 369 (2024).
[33] 607 U.S. 229 (2026).
[34] 585 U.S. 878 (2018).
[35] 431 U.S. 209 (1977).
[36] Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearings Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr., Nominee to be Chief Justice of the United States).
