There are other universes where none of this is happening.

Ones where John Roberts is a wealthy lawyer in private practice nearing retirement. Or remained on the U.S. Court of Appeals for the District of Columbia Circuit or is only an associate justice of the Supreme Court. Still more where Donald Trump never came down that infernal escalator. Or lost to Ted Cruz in 2016. Or to Hillary Clinton. And others still, including one in which Trump won reelection or was convicted by the Senate in his second impeachment trial or where there was a blizzard in Washington on Jan. 6. Perhaps even universes where he decided not to run again in 2024.

But in this universe, our universe, it all transpired as it did. And now Roberts, the man who has made depoliticizing the Supreme Court his life’s work, faces, in the three appeals concerning Trump’s actions on Jan. 6, the most politically charged cases of his tenure as chief justice of the United States. Trump’s fate, along with those of Joe Biden, the Republican Party, the 2024 election, the criminal justice system, even the Supreme Court itself, all rest in his hands. Roberts may not have made a bargain with the devil to get to his station in life. But the devil has come to collect anyway. 

The one-time Reagan White House official has overseen cases on many controversial questions during his time leading the court. Yet fractious as the Dobbs v. Jackson Women’s Health Organization decision overturning a constitutional right to abortion, the 2012 decision upholding Obamacare, or any of the others were, none implicated the sanctity of the Constitution and the legitimacy of the republic itself as these Trump cases do. 

The least contentious of the three is the furthest from resolution. In December, the Supreme Court agreed to decide whether a 2002 law passed in the wake of the Enron scandal applies to the conduct of Jan. 6 protesters and rioters. The Department of Justice has charged, and convicted, hundreds of defendants for their actions on Jan. 6 using the statute. One judge, however, ruled that it doesn’t fit. A divided District of Columbia Court of Appeals reversed him. Now the Supreme Court will determine in Fischer v. United States whether the crime of obstructing an official proceeding encompasses trying to thwart Congress’s certification of the presidential electoral vote as special counsel Jack Smith maintains or if, as Joseph Fischer’s lawyers contend, the obstruction contemplated by the law is limited to tampering with or destroying documents and other evidence. 

Trump ostensibly has nothing to do with Fischer. His name appears nowhere on it. Yet in reality, he has everything to do with it. Not just because of his role in inspiring the Jan. 6 debacle but because two of the counts in the Washington, D.C., indictment against him are identical to those involved in Fischer. As Kimberly Wehle, a law professor at the University of Baltimore, observed, a ruling in Fischer’s favor “has the potential to undermine Smith’s prosecution of Trump” by gutting his case against the former president. Even if the justices side with the government, by deciding to hear Fischer’s appeal they have likely delayed Trump’s trial several months past its scheduled March 4 start date, as the judge overseeing it is unlikely to let it proceed while the Supreme Court is considering whether half the charges against Trump are valid. Delaying the trial would already be a victory. A decision that cripples Smith’s D.C. case would undoubtedly be regarded as not only a legal but especially a political triumph for Trump.

The second of the three Trump cases haunting Roberts hasn’t even reached him yet. But it will just as soon as the D.C. Court of Appeals rejects, as everyone expects it will, Trump’s claim to presidential immunity from prosecution. Yet unless the Supreme Court refuses to hear Trump’s appeal outright, even here it could rule against him in ways that nonetheless benefit him. The justices could, for example, refuse, as they did when Smith asked them to bypass the circuit court and hear the case immediately, to expedite the matter and instead hew to their usual timelines. As with Fischer, that would likely mean a decision in late June and also render the March 4 date a dead letter. The justices could also, depending on the verdict of the circuit court, rule narrowly on technical issues without resolving the immunity question itself, which would also forestall the trial as the lower courts sort out the Supreme Court’s judgment. As any decision that postpones the trial would aid Trump, it would be greeted with effusive angst and consternation from those eager to see Trump tried, convicted, and imprisoned before the election. Not least Smith himself, who seems to have made that his overriding goal. 

Roberts, though, may have no choice but to offend the “resistance” by ruling, at least partially, in Trump’s favor. There will, after all, be future ex-presidents besides Trump. A categorical repudiation of the idea of presidential immunity would be an invitation to every future president to lock up his predecessors, especially if one of them were seeking to replace the incumbent in the Oval Office. On what grounds wouldn’t matter. A pretext can always be found. Loath as Roberts may be to throw Trump a bone, he may be more loath to turn every president into fair game for prosecution and imprisonment by his successor as soon as he leaves the White House. 

That successor could be Trump himself. Which brings us to the ticking time bomb Roberts finds himself sitting on: Trump’s appeal of the Colorado Supreme Court’s 4-3 decision declaring him ineligible for the presidency under Section 3 of the 14th Amendment of the U.S. Constitution, which the Supreme Court will hear on Feb. 8. 

Never mind the subtleties or nuances on which the case will hinge, such as whether the president is an officer of the United States, if Section 3 is self-executing, was Jan. 6 an insurrection and if so, did Trump engage in it. Those are trivialities compared to the substance of what the Supreme Court is being asked to do — that is, determine whether the likely presidential nominee of one of America’s two major parties, who happens to be the predecessor of the current president, will be allowed to stand for election at all. The consequences could be staggering. Unless Roberts can defuse the bomb, it threatens to blow up everything, not least the chief justice himself.

Trump’s lawyers prophesied “chaos and bedlam” if the justices allow Colorado to boot Trump from the ballot. They’re right, but that’d be the least of it. However they rule, one-half of the country will be outraged by the decision, perhaps irretrievably so. As Samuel Moyn, a law professor at Yale University, warned in urging the Supreme Court to overturn the Colorado opinion unanimously, excluding Trump “could put democracy at more risk rather than less” and “invite a repeat of the kind of violence that” made Section 3 necessary to begin with.

Roberts’s biggest problem is that a ruling against Trump won’t win him any friends but will make him even more enemies. Having lost control of it, the Left now despises the Supreme Court and wants to destroy it. Hence the clamor to pack the court and the smear campaign to gin up dodgy claims of ethical malfeasance funded by progressive dark money groups. Democrats’ approval of the court now stands below 50% in many polls. Nuking Trump is hardly going to make up for junking Roe v. Wade. 

On the other hand, it would erode what little standing Roberts has among conservatives, long suspicious and disdainful of his misguided and self-defeating efforts to “depoliticize” the Supreme Court. Some pundits have mused that Roberts, as a good party man, will rule against Trump because getting rid of him is what’s best for the GOP over the long run. That completely misreads the situation. Not only wouldn’t that save the GOP, it would damn Roberts and his brethren.

Simply put, after saving Obamacare, voting against overturning a constitutional right to abortion in Dobbs, and numerous betrayals and heresies in between, Roberts lacks the political capital and goodwill on the Right to uphold Colorado’s decision. Trump is the dominant figure in the Republican Party for the moment. No person or institutional actor who wishes to remain in good standing with the base would come to his defense should he commit the ultimate apostasy. 

Senate Minority Leader Mitch McConnell (R-KY) is the primary architect of the GOP’s strategy toward the courts. There is no love lost between him and Trump. Yet even he can recognize the obvious, as he did when he signed a brief on behalf of nearly 200 Republicans in Congress urging the court to keep Trump on the ballot. McConnell will likely be out of office in five years. After that, it’s Josh Hawleys, Mike Lees, and Ted Cruzes all the way down, Republicans who will show no compunction about retaliating for what almost everyone on the Right will construe as tantamount to treason. 

Siding with the Colorado Supreme Court would also be the death knell for the conservative legal movement. The current 14th Amendment push was started by two academics who belong to the Federalist Society. For those who tried to delegitimize Trump and undo the 2016 election since the early morning of Nov. 9 to succeed because a Republican-majority Supreme Court sanctioned the constitutional equivalent of a parlor trick exhumed by two members of one of the leading institutions of the conservative firmament would be cataclysmic. It would result not only in the excommunication of the Federalist Society from the ranks of conservatism but in a final and irrevocable discrediting of the conservative legal movement itself. The courts would be seen thereafter not as a last redoubt to be preserved but as a first bastion to be conquered. The Left is already out to get the Supreme Court. Roberts can’t afford to provoke the Right into grabbing its torches and pitchforks and joining the mob. 

A Supreme Court that allows a blue state to remove Trump from the ballot is a Supreme Court that can no longer tell a red state that it can’t return the favor to Biden. It will have lost the credibility and authority to enforce any such edict in a state run by Republicans. Roberts may not want to pave a two-way street, but the second lane will be added whether he likes it or not. The inevitable outcome, predicted Harvard Law School professor Lawrence Lessig, would be a tit for tat culminating in “a breakdown of our entire electoral system.” 

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The solution is obvious: leave Section 3 in Pandora’s box. Given its ambiguous provisions, argued Kurt Lash, an expert on the 14th Amendment, it’s best for the Supreme Court to stay out of it and “Let the people make their own decisions about Donald Trump.” Section 3 is defunct, an atavism with no purpose in the present. Resurrecting it now would not merely be perverse but a profound injustice. Such laws, declared Samuel Issacharoff of New York University School of Law, “cannot be allowed to hang around as an invitation to mischief once the historical moment has passed.” The famous saying goes, “Let justice be done though the heavens fall.” But as Steve Vladeck, a professor at the University of Texas, Austin, School of Law muses, if the heavens fall because of justice done today, how will justice be done tomorrow? 

At his confirmation hearing in 2005, Roberts famously compared his role to that of an umpire calling balls and strikes. Now he finds himself behind the plate for the constitutional equivalent of Game 7 of the World Series. If he blows the call, he may never get to make another. 

Varad Mehta is a writer and historian. He lives in the Philadelphia area. Find him on Twitter @varadmehta.