It would be a dull quest, but a difficult one, to find a 70-something white male conservative less like President Donald Trump than Chief Justice John Roberts. Mr Roberts is mild where the other is bombastic, endowed with impeccable establishment credentials where the other has credentialled himself, obsessed with consensus and continuity, not disruption. The chief justice never tweets; he has attained just one wife. And yet, as Mr Trump has been building a movement to remake America to suit himself, Mr Roberts, like the stewards of so many American institutions, has been failing at his job, at least by the standards he set when he became the chief 20 years ago.

Mr Roberts wanted to lead a Supreme Court that would transcend partisanship and speak with one voice. He wanted to stop the justices’ drift toward promoting their own theories of law, if not their own celebrity, and to persuade the court to refocus upon its institutional role in ballasting American governance for the long haul. “If it doesn’t,” he told Jeffrey Rosen, a writer and legal scholar, in 2006, “it’s going to lose its credibility and legitimacy.” During Mr Roberts’s tenure, as the court’s jurisprudence has swerved with shifts in its ideological balance, and as justices have thrilled their political tribes by issuing not just their own opinions but their own books and speeches, public respect for the court has plummeted, as measured by polls.

Now Mr Roberts, at 70, confronts a test as severe as any faced by a chief justice since his role model, John Marshall, squared off with Thomas Jefferson and Andrew Jackson. Mr Trump is claiming extraordinary powers for the presidency. With Republican leaders in Congress acting more like White House interns than champions of a coequal branch, the federal courts are providing the only check on Mr Trump, who has not merely mocked judges but demanded their impeachment. He has said he will obey the courts, but he has also declared: “I am—we are—the federal law.” He is, as ever, playing the madman, and keeping his options open.

By judging the politics just right, Marshall turned conflict with the executive into progress for America’s constitutional order. He held his justices together and established the court’s supremacy in interpreting the law against two contrary presidents, without provoking either into outright defiance. A clash is coming for this court, too. It could doom Mr Roberts’s leadership, and with it the order Marshall helped establish, or it could revivify both.

It is too soon to predict where the clash might come, let alone how Mr Roberts might try to finesse it. “There’s nothing he cares more about and is more sensitive about than the need to be subtle and avoid open conflict,” says Mr Rosen, who now runs the National Constitution Centre in Philadelphia. “But he is absolutely going to want to assert the supremacy of the court. It’s a question of brinkmanship.” He points to a hopeful theme in the few big conflicts between presidents and chief justices: “the restraint that both sides have demonstrated to avoid open defiance”.

The six “emergency” decisions the court has issued, in response to requests from the Trump administration for relief from lower-court orders, have largely been decided on narrow grounds, as is proper at that stage. But Mr Trump has lost three times, evidence the court is willing to frustrate him. The court’s most extraordinary order was a terse one issued in the wee hours of a Saturday, April 19th, blocking the administration from deporting certain detainees under the Alien Enemies Act. As Justice Samuel Alito complained in dissent, the Supreme Court pre-empted an appeals court and did not even give the administration a chance to argue its position. The haste suggested a lack of trust that Mr Trump would abide by a lower-court order halting such deportations. That the ruling was 7-2 suggests such sentiment among his colleagues is strengthening Mr Roberts’s hand.

Mr Trump has complied with the order. He has something to lose, too, from pushing conflict with the courts too far. Overwhelming majorities have told pollsters that Mr Trump should obey the courts in general, and the Supreme Court in particular. Further, Mr Trump is likely to notch up significant wins from Mr Roberts, to the dismay of Democrats, at least until they get the White House back. Mr Roberts wrote the majority opinion in Trump v United States. It not merely supplied broad immunity to a president from prosecution but articulated a sweeping new definition of a president’s power over the executive branch, consistent with the “unitary executive” theory conservatives had longed to write into law since the Reagan era. The administration is claiming Trump as the legal basis for many of its actions.

The supreme challenge

But handing a president power over the executive is not the same as ceding to a president powers the court believes belong to the other two branches. Legal scholars suspect the court under Mr Roberts will balk at Mr Trump’s attempts to usurp power by refusing to spend money Congress has allocated or erasing agencies it created, or by interpreting the law as he sees fit.

Mr Trump may be wagering that conflict, not defiance, will serve his ends. Admirers of Marshall cite the landmark decision Marbury v Madison in arguing that he cleverly conceded short-term advantage to Jefferson while winning long-term authority for the court: its primacy in interpreting the constitution. But Russell Vought, an architect of Mr Trump’s second term, has drawn a different lesson: that Jefferson frightened Marshall into making more concessions than he truly believed right. “It was Jefferson”, Mr Vought has written, “who gave us a glimpse of the posture that prevents encroaching powers.” Maybe. Regardless, it will be up to Mr Roberts to find the right balance now, gauging Mr Trump’s limits while reinscribing America’s principles. ■

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