Supreme Court seems intent on taking small steps in dealing with challenges to Trump's agenda

Boston Globe

11-03-2025

Instead, they may stand for an important, but less showy, commitment to regular order from the top of a judicial system that has emerged as a key check on Trump's power with the Republican-controlled Congress largely supportive or silent.
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Jack Goldsmith, a Justice Department official during President George W. Bush's administration, said there may be benefits for the court in taking small steps and delaying, which 'brought the court advantage by achieving emergency outcomes it wanted without having to tip its hand prematurely on the merits of the cases.'
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Trump's unparalleled flex of presidential power seems destined for several dates at a Supreme Court that he helped shape with three appointees during his first term.
But even a conservative majority that has a robust view of presidential power and granted him broad immunity from criminal prosecution might balk at some of what the president wants to do.
His push to end birthright citizenship for the children of parents who are in the U.S. illegally, for instance, would discard more than 100 years of practice and a relatively settled understanding of the 14th Amendment's guarantee of citizenship to 'all persons born or naturalized in the United States.'
Challenges to the citizenship order are among more than 100 lawsuits that have been filed, and lower-court judges have hit pause on the administration's plans more than 30 times.
The Supreme Court's early forays have largely not been about the substance of what the president wants to do but about the procedures used by federal judges who have the first crack at evaluating the lawfulness of the administration's actions.
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Trump allies, most notably his billionaire adviser Elon Musk, have railed at judges slowing his agenda, threatening impeachment and launching personal attacks. The Federal Judges Association, the largest such organization, issued a rare public statement decrying 'irresponsible rhetoric shrouded in disinformation' that could undermine public confidence in the judiciary.
Though Trump has said he would obey the courts, Vice President JD Vance, Musk and others have suggested the administration could defy a court order, which would spark a constitutional crisis. Trump has vowed to appeal decisions he doesn't like, something his administration has done quickly in several cases even as some plaintiffs question whether the government is fully following judges' orders.
'It seemed to me that they're playing pretty fast and loose,' said Jeffrey Schmitt, a professor at the University of Dayton School of Law. 'They don't want to be seen as blatantly disrespecting the courts and refusing to follow their orders. They also don't want to change their behavior.'
The Supreme Court, meanwhile, is getting drawn into the fray in fits and starts. That could change soon, as more lawsuits reach a stage at which they can be appealed to the high court.
'It strikes me that the court is trying to signal that the normal processes should take place,' said Kent Greenfield, a Boston College law professor who is the main author of a letter signed by roughly 1,000 scholars contending that the nation already is in a constitutional crisis as a result of Trump's actions.
A progressive group, Court Accountability, said the court's more recent order, in the foreign aid freeze case, may have been reported as a setback for the administration.
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'But a closer look at the majority's short order reveals that the Chief Justice actually gave Trump everything he wanted,' the group wrote on its blog, explaining that additional delays only make it harder for people and groups hurt by the freeze to recover.
Josh Blackman, a professor at the South Texas College of Law, wrote on The Volokh Conspiracy blog that the high court has ducked urgent constitutional issues it should have decided about the extent of the president's power. Instead, he wrote, district judges 'are now confident they can issue any order they wish against the executive branch, and the Supreme Court will not stop them. This is the judiciary run amok.'
But while they sparked online outrage in some quarters of the president's base, the events of the past few days could be seen as validation for the justices' cautious approach.
On Feb. 21, a Supreme Court order temporarily kept Hampton Dellinger, the head of the Office of Special Counsel, in his job despite efforts by Trump to fire him.
In fact, the justices didn't rule either way on the administration's request to throw out an order in Dellinger's favor. The high court held the matter 'in abeyance,' pending further proceedings in the lower court.
On Thursday, Dellinger ended his legal fight after a federal appeals court ruled against him — but not before he stalled the firing of 5,000 federal workers slated for layoffs.
The Supreme Court finally acted on the administration's request, hours after Dellinger dropped out, dismissing it as moot.
The scale of the federal layoffs that the new administration wants to carry out could also put federal employment law in front of the high court. While experts say the justices appear inclined to allow the president more power to hire and fire agency heads, the outlook is less clear for civil service protections for other federal workers.
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In the foreign aid freeze case, U.S. District Judge Amir Ali narrowed his payment order to require the administration to immediately pay only those organizations that had originally filed the lawsuit.
But with nearly a dozen lawsuits filed over moves to freeze federal funding abroad and at home so they can align spending with Trump's agenda, the fight over 'power of the purse' seems bound to return to the Supreme Court.
The justices have played a limited role so far, but Trump's presidency is less than two months old.