The Supreme Court Must Rescue Itself From Its Own Madness

Yahoo

24-03-2025

To belabor the obvious, given the Senate Republicans' stubbornly lockstep devotion to Trumpification, the only civic bastion potentially able to brake this flamboyantly lawless White House's drive for unbounded power is the federal judiciary, in particular the Supreme Court. Long aware of this last potential obstacle to their ambitions, Trump and his team have been unreserved about impugning the court's authority to dispute their sweeping definition of presidential power. Trump's most hawkish presidential imperialists, Vice President JD Vance and Office of Management and Budget Director Russell Vought, have trumpeted their zest for defying any judicial orders to respect legal boundaries.
At the same time, Trump himself, along with Attorney General Pam Bondi's Justice Department, has been more coy, at least until their circumvention of U.S. District Judge James Boasberg's March 15 order to halt extralegal deportation of alleged Venezuelan gang members to El Salvador. So all eyes have turned to Chief Justice John Roberts and his five conservative colleagues to divine whether, when, and how they might stand up to this unprecedented existential threat to the rule of law.
In a recent article, I laid out the most promising approach for the justices to take up this challenge. Namely, just do their job, as the Constitution and laws prescribe, as the Framers of those enactments anticipated, and the electorate expects. That means the straightforward civics class imperative: laser-focus on the relevant enacted text of the Constitution and pertinent statutes; interpret that text in good faith, with the lawyerly discipline of their craft, in light of its Framers' design; and apply and enforce that interpretation, without regard to partisan, policy, personal, or institutional preferences and interests.
That approach will enable the justices to fight this epochal war on their own turf, playing to their strengths, forcing Trump and his henchmen to play defense—and simultaneously spotlight his agenda as the lawless bid for raw, unbounded power that in fact it is. The justices will have to hope for, and cannily encourage, politically credible allies to mobilize and public support to crystallize. There is a well-known, encouraging precedent—Watergate, the court's U.S. v. Nixon no-nonsense order joined by three Nixon-appointed justices, and its denouement—Nixon's resignation. Indeed, there are signs, highlighted recently in these pages by Michael Tomasky and Trump's most loathed courtroom nemesis, Norm Eisen, that a similar pushback groundswell may already be underway.
But there is a catch. When Roberts and those of his colleagues who choose to join him set out on this high road, they may quickly find themselves saying, 'We have met the enemy, and it is us'—that is, themselves and their own record.
For the most part, the record established by Roberts and Trump's first-term judicial appointments on and, for the most part, off the high court itself, have vindicated Roberts's fulminations that they are not 'Trump's' judges. During his first term, on significant occasions, they ostentatiously quashed attempts by him and his appointees to play fast and loose with the facts underlying legally baseless decisions. Most galling to Trump, they repeatedly rejected his multiple bids to enable him to hijack the 2020 presidential election.
However, while thus frequently frustrating Trump, Roberts and his fellow conservative justices were simultaneously hard at work on a quite different enterprise: empowering themselves to circumvent applicable law to pursue various agendas, and aggrandize their own raw power by concocting an elaborate doctrinal edifice enabling that illicit design. Often, that self-aggrandizing framework embraced notions popular in conservative ideological circles, which weakened legal guardrails against presidential abuse. And it is precisely those errant actions, disdaining long-entrenched checks and balances, on which Trump lawyers now rely to justify their power grabs—and which have given them hope, however wary, for ultimate vindication by the high court.
To win a war they cannot avoid, Roberts and his allies must rediscover their belief in a simple notion: The American president is not above the law—and they are, as Chief Justice John Marshall decreed two centuries ago, assigned by the Constitution to have the last word as to 'what the law is.' But to assert that claim and make it stick politically, the justices will have to confront—and disavow—their own decisions and rhetoric in which they themselves have spurned the plain meaning of laws and decisions, pandered by mouthing extravagant far-right buzzwords, and jettisoned modi operandi central to the concept of the rule of law itself.Examples of the Roberts court's readiness to push aside unambiguous legal text and its Framers' design are too many and too familiar to burden readers with anything like a complete list. Here I will showcase particularly egregious rulings occupying, in liberal Justice Elena Kagan's apt chestnut, a 'law-free zone,' and that are particularly likely to loom over the court's responses to lawless Trump misadventures likely to reach the court.
The top of that short list is Roberts's widely noted decades-long drive to sideline explicit core commands of the 1965 Voting Rights Act and the Fifteenth Amendment. As I and many others have detailed, before and after he joined the court, Roberts had repeatedly vented obsessive hostility to legal race preference provisions, the VRA in particular, as 'a sordid business, this divvying us up by race.'
As chief justice, in decisions in 2010, 2013, and 2021, Roberts and his conservative colleagues had, as observed in a fierce 2021 Kagan dissent, repeatedly 'rewritten' the VRA, with their 'own set of extra-textual rules,' to gut a statute meticulously drafted to implement President Lyndon Johnson's instruction to his Attorney General Nicholas Katzenbach, 'I want you to write the goddamndest toughest voting rights act that you can devise.' In its 6–3 2021 decision upending Katzenbach's handiwork, the court blew past several VRA provisions, the most egregious being its insistence that the law banned only state election laws or practices that intentionally caused ballot-box discrimination, in the face of 'Congress's use of an effects test, rather than a purpose test, to assess [state actions'] rules' legality.'
Roberts and his majority didn't misinterpret the terms of the law in question, they ignored them altogether and substituted an approach 'founded,' as the Kagan dissent skewered, 'on a list of mostly made-up factors, at odds with [the VRA's] itself.' Trump's strategists could be forgiven for reaching the obvious conclusion: If that's the model deployed by the cadre atop the Article 3 branch to reach their policy or political goals, why shouldn't the head of Article 2 show the same indifference to applicable law in pursuing his agendas?
The next best example of the Supreme Court supermajority's penchant for sidelining laws inimical to their own policy preferences is the conservative justices' drive to gut provisions of the Clean Air Act, or CAA, that direct the Environmental Protection Agency to adopt and enforce regulations to combat global warming. This campaign reached its most extreme level yet of 'We'll do whatever we want' indifference to duly enacted law on the last day of its 2021–2022 term. The chief justice, writing for the rest of the conservative bloc, barred President Joe Biden's EPA—in advance, before the agency had even initiated a rulemaking proceeding—from requiring utilities to increase their use of wind and solar sources (rather than coal) to fuel their power plants.
Roberts et al. acknowledged that the switch-to-renewables approach was authorized by the pertinent CAA text, which explicitly commands that the EPA require utilities to deploy the 'best system for emission reduction.' But Roberts et al. decreed the text—and the evident design of its congressional Framers—to be irrelevant. They fabricated a novel version of a little used, and theretofore comparatively unexceptionable, 'major questions' doctrine, which newly empowered themselves to shelve any agency action that portends 'significant economic or political consequences,' even if, as in this case, the agency action in question was within the agency's core environmental mission, and the statute was crafted precisely to confer broad authority flexible enough to handle urgent needs under unforeseeable circumstances.
Thus, to put Roberts's CAA demolition in perspective with the Trump administration's law-shredding antics, the chief justice and his cadre did so in a manner designed to exponentially bloat their own power. They revamped the 'major questions' doctrinal construct into a club enabling them to pulverize any agency action that could have what they are willing to label prohibitively significant economic or political impact—in effect, anything that matters at all.
A third 'law-free' foray by the justices on the court's right is the most recent and most blatant: their notorious 2024 conferral of unbounded permanent presidential immunity from criminal liability, for virtually any 'official' actions. To reach this result, they did not even pretend to claim any statutory or constitutional authority. As recognized across the ideological spectrum, Roberts's opinion in Trump v. United States cast aside not just twentieth-century progressive–New Deal–Great-Society liberal governance long derided in far-right ideology, not just the 'Second Founding' Reconstruction Amendments sabotaged by a century of Jim Crow rule in the South, but the core grand design for a democratic republic written unambiguously into the original 1789 Constitution, until that moment never questioned. As conservative Professor Michael Rappaport painfully acknowledged, 'Presidential immunity does not accord with [the Constitution's] original meaning.'
The point pertinent here is not that Trump v. United States rescued Donald Trump from Jack Smith's investigations, nor even that the decision unleashed Trump to commit second-term crimes. Roberts and at least some of the five justices who joined his opinion may have sincerely believed that tit-for-tat prosecutions of presidential predecessors would spiral over time into a fixed pattern catastrophic for constitutional democracy. Given Trump's serial threats to prosecute his predecessor, they could have, not unreasonably, viewed Biden as a likely first beneficiary of their decision. (Of course, Trump and his acolytes are now making a mockery of any such notions that immunizing presidential criminality would banish banana republic governance from the United States.)
What matters most is that fabricating presidential immunity out of whole cloth only served to demonstrate that these justices have no compunction about throwing the law and the Constitution overboard when necessary to enable some policy or other outcome they favor. Discerning court-watchers, such as Trump's henchmen Vought and Vance, are unlikely to have missed this inference. Nor would pundits, politicians, and much of the electorate, cued by the liberal justices' searing dissents.
Perhaps most telling, as far as esteem for the court's law-respecting bona fides is concerned, is the Roberts's majority's resistance to an enforceable code of ethics similar to that applicable to all other federal judges. In the public eye, this disdain for universally acknowledged standards of conduct must come across as greenlighting overt conflicts of interest, given the brazen misconduct of some justices or their spouses. (Some of the justices, quite possibly a majority, appear to be aware of this reputational threat and seem to favor an enforceable ethics code for their court.)
All of which leads us to the proverbial $64,000 question: Can these justices take Donald Trump or Elon Musk to task, when their own claim to fidelity to law and to ethical norms is thus flawed? Can they disavow their own 'law-free' actions? The answer is, maybe they can.Recently, especially during the court's 2022–2023 term, bipartisan court majorities have taken steps—inconclusive but more than baby steps—down that very path, as I have elaborated. To take the example that most startled court-watchers: In overturning an Alabama redistricting gerrymander, Roberts struck an audibly different chord from his career-long antipathy to the 1965 Voting Rights Act. Laying out a widely noted 'expansive interpretation,' he lauded the VRA for 'creating stringent new remedies attempting to forever banish the blight of racial discrimination in voting.' He labeled the VRA 'the most successful civil rights statute in the history of the nation.'
Most eyebrow-raising, he put aside his oft-repeated visceral distaste for race preferences, observing that 'the question whether additional majority-minority districts can be drawn, after all, [inherently] involves a quintessentially race-conscious calculus.' (Next Monday, March 24, the court will hear oral arguments in a substantially identical Louisiana gerrymandering case, so we will see whether Roberts and his bipartisan five-justice majority stick to their revisionist pro-VRA guns.)
But, whether or not Roberts and one or more of his conservative colleagues feel inclined to sustain their 2022–2023 tack to the center, there is another, more compelling consideration likely to spur them to prioritize turning back Trump's second-term muscle flexing. That motivation surfaced in their skirmishes during Trump's first term.
Particularly revealing was Roberts's angry 2019 rejection of Trump's ploy to add a citizenship question to census questionnaires, intended to frighten noncitizens from participating in compiling the census. What stoked Roberts's ire was the administration's disingenuousness to the courts, the 'disconnect between the decision made and the explanation given,' which Roberts pilloried with epithets of a sort this decorously professional superlawyer rarely reaches for—'pretextual,' 'contrived,' 'bad faith.' Roberts expressly based his decision to stifle Trump's census scheme on the need to protect the judiciary, especially, his court—their authority, credibility, and ultimately, their relevance and power.
He explained that when judges review agency actions, 'Accepting contrived reasons would defeat the purpose of the enterprise,' effectively rendering them irrelevant. He brandished a quote from Second Circuit icon Judge Henry Friendly, whom he had served as a law clerk, 'Our review is deferential, but we are not required to exhibit a naïveté from which ordinary citizens are free.''
As I and others have observed, the most consistent thread running through Roberts's two-decade tenure has been his 'drive to advance the Court's power … as the final decider and major direction-setter on the nation's most fought-over issues.' To his eyes, Trump's census ploy threatened that priority; manifestly, a far more dire such threat is posed by the second-term Trump team's ambition to elevate the presidency, not simply over the executive branch, top to bottom, but over the legislative and judicial branches, as well—a power grab far beyond any of the conservative justices' dabblings in 'unitary executive' theorizing.
His appointees to the Supreme Court, and lower court federal judges appointed by him and other Republican presidents, are of course cognizant of Trump's and his field generals' oft-vented enmity toward them, along with the administration's slow-walking compliance with court orders and threats of outright refusal to comply—most notably in the Justice Department's March 15 evasion of deportation procedures for alleged Venezuelan gang members, an apparent actual act of noncompliance.
They know they are in a veritable war for the life of the institution over which they had been set to preside for their entire professional lives. They have no option but to wage that war, as fiercely but cannily as feasible. If Roberts and his cadre cannot meet this imposing challenge, their legacy will be the enfeeblement of what had long been admired as the most powerful judicial institution in the world. The irony will be that the precedent-shattering, often lawless decisions they rendered to boost that power ended in facilitating its destruction, by an even more power-hungry and lawless White House wannabe authoritarian.