Stakes are high for US democracy as conservative supreme court hears raft of cases

The Guardian

2 days ago

A year has proved to be a long time on the scales of US justice.
Less than 12 months ago, the US supreme court was in serious disrepute among liberals following a series of ethics scandals and a spate of highly contentious, conservative-leaning rulings. It culminated in a ruling last July vastly expanding a president's immunity from prosecution, virtually guaranteeing that Donald Trump would escape criminal censure for the 6 January 2021 insurrection and retaining classified documents.
So far had the court's stock with Democrats fallen, that Joe Biden called for radical reforms on how the court was run and a constitutional amendment asserting that no president was above the law or immune for crimes committed in office.
Now, with a re-elected and vengeful Trump having run rampant over democratic norms by issuing a fusillade of often illegal and unconstitutional executive orders, the same court – with the same nine justices on the bench – is being cast in the unlikely role of potential saviour of American democracy.
Critics who once derided the judicial consequences of the court's six-three conservative majority hope that the justices will show enough fealty to the US constitution to mitigate the effect of Trump's all-out assault on a range of rights, from birthright citizenship to basic due process appeals against deportation, and preserve the constitutional republic's defining contours.
'The court is certainly a very important institution at this moment since Congress is completely pliant and not asserting its own prerogatives and the executive branch doesn't seem to be guided by any internal legal constraint,' said Jamal Greene, a law professor at Columbia University and a former high-ranking justice department official in the Biden administration.
The court has already adjudicated in several high-profile cases since Trump's return – notably ruling against the administration in ordering it to 'facilitate' the return of Kilmar Ábrego García, a Maryland resident wrongly deported to El Salvador.
But it has ruled in Trump's favour, at least temporarily, in several others.
The stakes are about to be raised further still as a spate of cases arising from rulings against the administration by lower judges awaits the supreme court's final say before its current term ends this month.
These include: the rights of lower courts to issue injunctions against Trump's efforts to restrict birthright citizenship, which is guaranteed in the constitution; an attempt by Tennessee to ban or limit transgender care for minors; a complaint by parents in Maryland against allowing LGBTQ+ books in elementary schools; the need for insurers to cover preventive healthcare costs under the Affordable Care Act; and attempts to cut off public funding for Planned Parenthood.
Added to that daunting schedule, the justices can expect additional unaccustomed summer workload in the shape of seemingly unending emergency cases wrought by Trump's no-holds-barred attempt to transform government.
Most experts believe the court will ultimately rule against Trump's attempt to undermine birthright citizenship rights, given that they are so clearly defined in article 14 of the constitution. Yet the devil may be in the detail. Some analysts believe the court has already lent the administration's case unwarranted credibility by agreeing to consider its challenge against lower courts' powers to issue nationwide injunctions on the subject. Perhaps tellingly, the court has not called for a supplemental briefing on whether Trump's 20 January executive order was legal.
Hopes that the current court can act as a brake on Trump seem forlorn given its conservative majority and the fact that three of its members – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – were appointed to the bench by Trump himself. In addition, justices Clarence Thomas and Samuel Alito consistently take hardline positions that seem predisposed to favour Trump.
Yet speculation that the chief justice, John Roberts, and Coney Barrett have become disenchanted by the brazenness of Trump's actions has fueled optimism. Some believe they could vote with the court's three liberal justices, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson – who consistently issue dissenting opinions on rightwing rulings – frequently enough on key occasions to form an effective bulwark.
But Leah Litman, a law professor at Michigan University and author of a book on the court entitled Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes, is sceptical.
A recent ruling upholding the president's firing of the head of the National Labor Relations Board, Gwynne Wilcox, and overturning a 1935 precedent known as Humphrey's Executor – which gave Congress the power to limit a president's ability to remove officials from independent agencies – shows the conservative justice's reverting to type, she said.
'Some people wondered: 'Was the court going to have second thoughts about, for example, their immunity decision giving Donald Trump such leading powers, including powers to act outside of the law and above it?'' Litman argued. 'I think the Wilcox ruling underscored that the answer is definitively no.'
Underpinning the conservative justices' approach is the unitary executive theory, which posits that the president has sole authority over government's executive branch, allowing him to fire members of nominally independent agencies without cause.
'They have been pushing this theory for over three decades and now they have a chance to make a pretty muscular version of it the law,' Litman said. 'Chief Justice Roberts and Justice Barrett understand that the court can't let Donald Trump get away with everything, including usurping Congress's power or obviously depriving individuals of due process. But short of that, I don't think they are having any kind of second thoughts about their own views of executive power or about the law more generally.'
The few cases of the court standing up to Trump, argues Litman, have been 'overplayed' and pale in importance compared with other rulings that have emboldened the president, including upholding the stripping of temporary protected status from about 300,000 Venezuelans.
Greene defined the court's approach as 'formalist' and ill-suited to counter Trump's lawbreaking. He contrasted it with the much bolder ethos under Chief Justice Earl Warren's leadership in the 1950s and 1960s, when the court became renowned for creatively enforcing racial desegregation and civil rights orders in the south.
'Trump's modus operandi is to exploit what he perceives as weaknesses in the system of enforcement and accountability,' Greene said. 'If he thinks that courts are not going to be able to step in, he will try to exploit that as much as he can, unless and until he's stopped by some political actor or an actor with more power.
'The Trump administration is exploiting the formality and the lack of creativity of courts in general, but the supreme court in particular.'
The court's writ has already been exposed as limited by Trump's failure to comply with its order to facilitate the return of Ábrego García to the US.
According to Greene, the White House's failure to police its own actions to ensure they are in line with the law and the constitution already amounts to a constitutional crisis, because the courts lack the time and resources to counter unbridled violations.
That puts added onus on the supreme court to fulfill its role as ultimate arbiter, argues Litman.
'We should continue to demand that they actually do uphold the law,' she said. 'I don't think we should just give up and give in to their inclination to not enforce the law and allow Donald Trump to get away with legal violations. If they don't, force them to expend the capital and pay a price in their public approval rating.'