Not since the pro-slavery Taney court before the American Civil War has a Supreme Court been so wrong for its moment in history as the Roberts court that opens a new term on Monday.
Led by John G. Roberts Jr., the George W. Bush appointee who marked his 20th anniversary as chief justice last week, the nation’s highest court with its 6-3 right-wing supermajority has ignored norms and precedents to mostly give a green light to the most lawless president in U.S. history, Donald Trump. Thus enabled, the wannabe authoritarian, who picked three of the justices, often praises their rulings — even as he lambastes and invites threats to the many lower-court judges whose adverse orders the Supreme Court has blocked in its deference to the president. The White House website keeps a running tally of the victories.
“How the Roberts Court became the Trump Court” was the fitting headline last week on an analysis from CNN correspondent and longtime court biographer Joan Biskupic. She quotes Michael Klarman, a professor of American legal history at Harvard Law School, who slammed Roberts for “appeasing the autocrat,” and added, “The basic lesson of the 20th Century is that doesn’t work.”
A quarter through the 21st century, Americans seem doomed to relearn that lesson. The term ahead will further test the Supreme Court as a pumped-up Trump pushes the bounds of presidential power. Many of its decisions have been temporary wins for him, blocking lower-court orders pending further litigation. The coming months will tell whether Trump’s W’s are permanent: Various cases will return for the justices to finally decide on the merits, with fully argued opinions instead of the one-sentence slapdash orders they’ve been putting out.
Yet a Supreme Court that last month, in a Los Angeles case, empowered federal agents to racially profile, stop and detain anyone they suspect of being in the United States illegally — court precedents and the Fourth Amendment be damned — is not a court that invites confidence that it would stand up against Trump and for federal law and the Constitution. Which makes all the more frightening the commander in chief’s declaration on Tuesday to about 800 generals and admirals that henceforth Democrat-run U.S. cities will be “training grounds” for troops, to battle “the enemy from within.”
That’s our future, if the justices allow. Just consider how Trump and his administration have already, in under nine months, reshaped legal and constitutional limits in unprecedented ways, thanks to a complicit Supreme Court (and a compliant Republican-controlled Congress).
Trump has slashed spending and gutted federal agencies, not least the Department of Education, that Congress approved by law, making a mockery of Congress’ constitutional power of the purse and legislative prerogatives. He’s imposed, paused and altered tariffs unilaterally. He’s presided over mass firings of federal employees, despite civil service protections going back more than a century, to reinstitute a political spoils system. He has fired leaders at supposedly independent regulatory agencies without cause. (On Wednesday, in the most-watched case of such agencies’ independence, the Supreme Court did block Trump from firing Federal Reserve Board Governor Lisa Cook, a Biden appointee, pending a full review of the administration’s case against her in January.)
People suspected of being in the country illegally are daily and often cruelly rounded up by masked, unidentified federal agents and deported without due process, some to dangerous countries to which they have no connection. The Justice Department openly uses Trump’s enemies list as its prosecutorial to-do list. Trump ordered an end to birthright citizenship, despite the plain language of the 14th Amendment. The Supreme Court in June used his appeal of his lower-court losses not to affirm those courts and uphold the constitutional right — it was silent on that — but instead to rule on a procedural matter and limit lower courts’ power to order national injunctions of presidential actions.
Administration lawyers repeatedly have filed misleading briefs, made false statements in lower courts and slow-walked or disregarded court rulings without admonition or penalty from the Supreme Court. A Washington Post analysis in July found that the administration defied more than a third of lower courts’ substantive rulings against it. Yet the Supreme Court’s conservative majority has just “shoved lower court judges out of the way” when presidential power is at stake, as liberal Justice Ketanji Brown Jackson put it in June. Meanwhile, the judges suffer increased threats for their rulings and the chief justice and his colleagues remain mostly mute.
Trump, of course, was emboldened to grab power from day one (and, arguably, to win reelection in the first place) by the Supreme Court’s shocking decision last year giving him and future presidents virtual immunity from criminal prosecution. As liberal Justice Sonia Sotomayor wrote in a dissent last year, the aptly named Trump vs. United States puts presidents “above the law.”
It’s not just what the court has done that is so objectionable. It’s how it’s done its work. Even as lower courts step up to Trump’s challenges to the rule of law, with hearings, trials and well-reasoned rulings, the justices typically trump them (pun intended) with unsigned, one-sentence statements that leave judges and the public confused as to why the Supreme Court ruled as it did and whether its ruling stands as precedent. Extraordinarily, district and appeals court judges appointed by presidents of both parties, including Trump, are going public with their gripes against the justices.
On Tuesday, a Reagan district judge in Boston, William Young, blistered Trump mainly, but the Supreme Court by implication, in a 161-page opinion that he called the most crucial of his half-century career. Young closed: “I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected. Is he correct?”
No, he’s not, insofar as the American people are concerned. But yes, I fear, he is correct when it comes to the Supreme Court.
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