The Supreme Court Must Rescue
Itself From Its Own Madness
To stand up to Trump’s lawless power
grabs, the Roberts court must disavow its own mirror-image corruptions. It may
yet feel obliged to do just that.
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.” (On March 24, the Court heard
oral arguments in a similar racial gerrymandering case, this one arising from
Louisiana. The justices’ sometimes confusing—and confused—questions indicated
no backing away from their acknowledgement that the VRA authorizes
race-conscience districting, but suggested that in future cases a conservative
majority might apply the equal protection clause of the fourteenth amendment in
ways that could circumscribe VRA remedies.)
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.
