Robed Collaborators
In
the early days of his second term, some worried that Donald Trump would
cause a constitutional crisis by defying the Supreme Court after it
blocked one of his several blatantly illegal actions. Such a crisis may
yet materialize, but thus far the court has invited crisis not by
blocking the Trump administration’s actions but by authorizing them.
There were clear signs the court would play enabler even before Trump was reelected. In the July 2024 Trump v. United States decision, concerning Trump’s attempt to stop certification of the 2020 election results, the six conservative justices, with no constitutional basis or precedent, granted the president immunity for crimes committed “within the outer perimeter of his official responsibility.” This included absolute immunity for acts central to the president’s Article II powers and “presumptive immunity” for other official acts.
As Jack Goldsmith argues,
the court’s ruling didn’t just offer Trump a shield against future
prosecution; it handed him a sword. Writing for the majority, Chief
Justice John Roberts advanced a “maximalist theory of executive power.” An adherent of the ahistorical “unitary-executive theory,” Roberts contended
that “the President is a branch of government, and the Constitution
vests in him sweeping powers and duties,” including broad discretion in
enforcing (or refusing to enforce) the laws and directing and removing
subordinates in the executive branch. As Peter M. Shane points out in The Atlantic, Roberts all but seconded Trump’s illiterate claim
that “I have an Article II, where I have the right to do whatever I
want as president.” But both Trump and Roberts ignore the parts of
Article II that make clear the executive branch is meant to be made up
of “executive departments” structured and vested with authority by
Congress. “This is not at all a one-person branch of government,” Shane
writes, “and its design is not the prerogative of the president.”
At the time of the ruling, many observers threw cold water
on dissenting liberal justices’ worries that it would give the
president a pass to commit egregious crimes like killing perceived
enemies. But on September 1, that’s just what Trump did. In an
outrageous breach of both international and U.S. law, he ordered an
airstrike on a Venezuelan boat suspected of smuggling drugs, killing its
eleven passengers. The administration offered no evidence the boat was
violating the law and no plausible legal rationale for its action.
Secretary of State Marco Rubio lamely justified the use of military
force by characterizing the alleged drug boat, which had reportedly turned around, as an “imminent threat.” Trump announced another similarly lawless attack on September 15.
Meanwhile, the Roberts court has made a series of unexplained rulings on its so-called “shadow docket” that have authorized Trump’s illegal domestic tactics. Used sparingly before Trump’s first term, this emergency docket has been exploited by the administration to quickly undermine the work of lower courts offering relief to victims of the administration’s criminal policies. On September 8, in another 6-3 decision, the court lifted an injunction granted by a district-court judge against illegal ICE raids in Los Angeles. In blatant violations of the Fourth Amendment, which prevents unreasonable search and seizure, ICE officers have interrogated and detained people based solely on their race, the language they’re speaking, and the work they’re doing. Stops based on these factors amount to civil-rights violations of undocumented workers and U.S. citizens alike, some of whom have been subject to violent arrests and lengthy detentions without access to legal counsel. The reasonable-suspicion standard requires suspicion related to particular individuals, not statistics and stereotypes.
The decision was one of twenty consecutive wins for the Trump administration on the shadow docket since April—virtually all of them in 6-3 decisions along ideological lines and seldom accompanied by any explanation. (For comparison, the Obama and George W. Bush administrations only applied for emergency relief from the court a combined eight times in sixteen years.) Other victories have allowed Trump to dismantle the Department of Education despite its congressional mandate; deport undocumented people to “third-party” countries, like South Sudan, where they face indefinite imprisonment, torture, or death; and fire executive-branch officials without cause and in clear contradiction of precedent. Shadow-docket decisions are not the final word on these cases, but while they apply, the court is allowing the Trump administration to do irreparable harm to civil liberties, congressional power, and the rule of law.
Some have speculated that the court—and Chief Justice Roberts in particular—is accommodating the Trump administration so as to head off open conflict between the judicial and executive branches. Roberts’s court is, according to this theory, “keeping its powder dry” for some future confrontation with this lawless administration. But it’s more likely that the administration’s actions simply conform to the right-wing justices’ ideological preferences and their baseless—and selectively applied—theory of executive power.
Despite Roberts’s reputation as an institutionalist, his court is undermining the lower courts and the judiciary itself. In an extraordinary move, ten federal judges recently told NBC News as much. The court’s repeated emergency reversals of lower-court orders, they complained, are validating Trump’s specious narrative that lower-court judges are conspiring against him. And the Supreme Court’s refusal to explain itself while dispensing with precedent has placed lower courts in an impossible position. In this sense, the Roberts court isn’t just cooperating with an authoritarian regime; by issuing emergency rulings without rationales and placing its own prerogatives above the law, it is adopting authoritarian tactics of its own.
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