The supreme court is giving a lawless president the green light

The Guardian

a day ago

Just when we thought the US supreme court couldn't sink any lower in bowing and scraping to Donald Trump, it issued a shocking order last week that brushed aside important legal precedents as it ruled in the president's favor. In that case, the court's rightwing supermajority essentially gave Trump carte blanche to dismantle the Department of Education, which plays an important role in the lives of the nation's 50 million public schoolchildren, sending federal money to schools, helping students with disabilities and enforcing anti-discrimination laws.
Many legal experts, along with the court's three liberal justices, protested that the court was letting Trump abolish a congressionally created federal agency without Congress's approval. In their dissent, the liberal justices warned that the court was undermining Congress's authority and the constitution's separation of powers. Not only that, we should all be concerned that the court was giving dangerous new powers to the most authoritarian-minded president in US history.
In the Department of Education case, the court issued a one-paragraph, unsigned order that lifted a lower court's injunction that blocked the Trump administration from making wholesale layoffs that went far toward dismantling the department. Recognizing that Article I of the constitution gives Congress the power to create and fund federal agencies and define their responsibilities, prior supreme court decisions have held that presidents don't have the power to defy what Congress has legislated and gut an agency without Congress's approval.
In a stinging dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor wrote: 'Only Congress has the power to abolish the Department. The Executive's task, by contrast, is to 'take Care that the Laws be faithfully executed.'' Sotomayor added that the court's order 'permitting the Government to proceed with dismantling the Department' was 'indefensible'.
Making the court's move even more maddening was its failure to include any reasoning to explain its action – it was the most recent in a string of brief 'emergency docket' orders which, without giving any rationale, ruled on Trump's behalf. The rightwing justices might argue that this was a harmless, minor order, merely lifting a lower court's injunction until the case is fully adjudicated. But by vacating the injunction, the court let Linda McMahon, the secretary of education, speed ahead with her plan to slash the department's workforce by over 50%, a move that will gut the agency and prevent it from carrying out many functions that Congress authorized it to do. The supreme court's order is likely to leave the department an empty shell by the time the judiciary issues a final ruling on whether Trump broke the law in gutting the department – and there's a good chance the judiciary will conclude that Trump acted illegally.
The Trump administration insisted that it wasn't dismantling the education department, that it had merely ordered massive layoffs there to boost efficiency. But the district court judge didn't buy the administrations' arguments, especially because Trump had spoken so frequently about killing the department.
Sotomayor wrote that the constitution requires all presidents, including Trump, to faithfully execute the law. But in this case, Trump seemed eager to execute the Department of Education, while showing scant concern for executing the law. Noting Trump's repeated vows to abolish the department, Sotomayor chided the supermajority, writing: 'When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary's duty to check that lawlessness, not expedite it.'
With that language, the three dissenting justices were in essence accusing the supermajority of aiding and abetting Trump's defiance of the law. In the court's 236-year history, rarely have dissenting justices been so emphatic in criticizing the majority for 'expediting' a president's lawlessness.
Sotomayor hammered that point home, writing: 'The President must take care that the laws are faithfully executed, not set out to dismantle them. That basic rule undergirds our Constitution's separation of powers. Yet today, the majority rewards clear defiance of that core principle.'
If the US constitution means anything, it means that the supreme court should stand up to a president who seeks to maximize his power by defying the law. But far too often today's rightwing supermajority seems to lean in to back Trump. The court leaned in for Trump last year in Chief Justice John Roberts' much-criticized ruling that gave Trump and other presidents vast immunity from prosecution. The supermajority leaned in for Trump last month when it gave Elon Musk and his Doge twentysomethings access to sensitive personal information for over 70 million Americans on Social Security.
One would think the nine justices would be eager to strengthen the pillars that uphold our democracy: the separation of powers, fair elections, respect for the law, limits on the power of the executive. But the Roberts court has too often weakened those pillars: by giving Trump huge immunity from prosecution, by turning a blind eye to egregious gerrymandering that prevents fair elections and by letting Trump fire top officials from independent agencies long before their terms end. In late June, the supermajority curbed district courts' ability to issue nationwide injunctions to put a brake on Trump's rampant lawlessness – by that time, lower court judges had issued over 190 orders blocking or temporarily pausing Trump actions they deemed unlawful.
In the Department of Education case, the court again weakened a pillar upholding our democracy; it gave Trump a green light to ignore Congress's wishes and take a wrecking ball to the department. It's hugely dismaying that the court undercut Congress's power at a time when Trump has transformed the nation's senators and representatives into an assemblage of compliant kittens by intimidating them with a social media bullhorn that bludgeons anyone who dares to defy his wishes. Instead of shoring up Congress's power in the face of such intimidation, the Roberts court has seemed happy to undermine Congress and hand over more power to Trump.
On top of all that, it is galling to see the court issue so many pro-Trump orders without giving any rationale. When the US is so polarized and the court so widely criticized for its many pro-Trump rulings, it would seem incumbent upon the court, when issuing orders, to explain why it's doing what it's doing. But the court has repeatedly failed to sufficiently explain its decisions, revealing an unfortunate arrogance and obtuseness.
Justice Samuel Alito has complained about those who criticize the court over the rushed, unexplained decisions on its emergency docket. Critics have faulted the court for issuing too many orders through that docket, which uses abbreviated procedures to issue orders that remain in force while the courts adjudicate whether Trump's actions are legal. Alito maintains that with the crush of cases, the court doesn't have the time to write its usual, carefully wrought decisions.
Alito has suggested, rather outrageously, that many critics of the court are engaged in improper bullying. He said that some critics of the emergency docket suggest it has been 'captured by a dangerous cabal' that uses 'sneaky' methods. Those criticisms, Alito warned, fuel 'unprecedented efforts to intimidate the court'.
When the court issues one order after another that favors Trump, the most lawless president in US history, often without explanation, the court should expect to be criticized for doing too little to defend our democracy and the rule of law. Alito shouldn't be so thin-skinned or paranoid about supposed intimidation; he does have life tenure.
The court's critics aren't seeking to intimidate the justices. Rather they're pleading with the rightwing supermajority to stop bowing to Trump and become more resolute in enforcing the law against the most authoritarian president in history, a president who said he could 'terminate' parts of the constitution and who claims sweeping powers to singlehandedly nullify laws.
The court's supermajority should remember: we are supposed to have a government of laws, not of strongmen.
Steven Greenhouse is a journalist and author, focusing on labour and the workplace, as well as economic and legal issues