With the most authoritarian and lawless president in history sitting in the White House, theUS supreme courtis no doubt worried about looking weak in one of two ways. First, the court fears it will look pathetically weak if it becomes the first supreme court in history to have a president defy its rulings in a wholesale way. With that in mind, the court seems to be taking pains to avoid provokingDonald Trump’s defiance – it has issued several decisions upholding the president’s actions while in other cases, it has given him lots of wiggle room even as it objected to his administration’s moves.
Then there’s the court’s second, big worry – that it will look pathetically weak if it doesn’t stand up to the most authoritarian president in US history.Many legal expertscriticize the court for not standing up more to Trump, even though he has brazenly attacked the court and many lower-court judges, hasdefied severaljudicial ordersand has, according to numerous judges, repeatedly violated the law – whether by deporting immigrants without due process or by freezing funds approved by Congress.
The court’s six conservative justices have let themselves seem like Trump’s chumps because they’ve often bowed to him instead of standing up and ruling against him. The foremost example is last year’s supreme court ruling giving Trump astonishingly broad immunity from criminal prosecution.
The image-conscious chief justice,John Roberts, and his court have to decide which of two paths to take. One path – which the court’s conservative supermajority seems to be following – is to issue pro-Trump rulings to avoid inciting his ire and defiance. That approach might spare the court the Maga movement’s anger, but historians will look dimly on the court for bending in Trump’s favor – they’ll accuse it of complicity and sacrificing principle for not blocking Trump moves that,many legal experts,conservative,centristandprogressive, say, violate federal law and the constitution.
The court can choose a more courageous path: stick to principle and not shrink from ruling against Trump. That might spur the bull-headed president to defy the court, but under that scenario, historians would praise the justices for upholding the law and the court’s constitutional role and for not letting themselves become stooges for a power-hungry president.
The Roberts court has given us some hope, but not much. In a surpriseruling at 1am one April night, it seemed to develop a few inches of backbone by ordering the Trump administrationnot to deportseveral dozen Venezuelan immigrants to El Salvador without first giving them due process.
That was a promising ruling, but on the other side of the ledger, the court has often bowed to Trump, for instance, by overturning a lower court ruling and letting Trumpfire 16,000 probationary federal employeesand by letting his administrationsuspend $65min teacher-training grants. Moreover, the rightwing supermajority did Trump a big favor by letting himprovisionally remove the headsof two independent agencies, the National Labor Relations Board and the Merit Systems Protections Board. That hurried ruling, made without full briefing or arguments, indicated that the court’s conservatives are eager to overturn a unanimous, 90-year-old supreme court decision that limits presidents’ ability to fire officials at independent agencies. In this way, the Roberts court is giving more power to our dangerously authoritarian president.
Let’s not forget how weak the court has looked for failing to act firmly to assure the return of Kilmar Ábrego García, an immigrant from El Salvador who even Trump administration officials acknowledged was deported illegally. On 10 April, the court issued a wimpy decision that called on the Trump administration to“facilitate” Ábrego Garcia’s return– it stopped short of using the district court’s more muscular language to“effectuate” his return. More than six weeks have passed since the high court called on Trump to bring back Ábrego García, but Trump hasn’t done so. His administration has sidestepped outright defiance by pretending that it is seeking to facilitate Ábrego García’s return.
Not only that, Trump has smeared the justices bysaying: “THE SUPREME COURT WON’T ALLOW US TO GET CRIMINALS OUT OF OUR COUNTRY!” Trump has also savaged several federal district court judges, calling one a “radical left lunatic” anddenouncing othersas “MONSTERS WHO WANT OUR COUNTRY TO GO TO HELL”.
With their hard-right ideology, the court’s supermajority evidently sympathizes with many of Trump’s moves and has blessed such moves far more often than many legal scholars would like. In doing so, the court has emboldened Trump to take even more actions that push – and often overstep – the boundaries of what is legal. In a worrisome development, the court has, at least thus far, shown surprisingly little concern about Trump’s defiance of district court judges’ orders and his authoritarian effort to assert his dominance over the two, other theoretically co-equal branches of government: the judiciary and Congress.
For its own good and for the nation’s good, the supreme court needs to step up and do its utmost to stop Trump’s lawlessness and his unprecedented efforts to defy district court rulings and lash out against the judiciary. Trump hascalled forimpeaching judges who ruled against him, and as his tirades against judges have increased, the number of judges who havereceived threatshas soared.
The court needs to issue some strong, clarion decisions that make clear to the nation that Trump has shown repeated contempt for the constitution, the rule of law and the judiciary. The justices should move quickly to issue an outrage-filled ruling that finds that Trump violated law firms’ free speech rights by punishing several firms for taking cases he didn’t like or employing lawyers he didn’t like. The justices should also move swiftly to issue a strong ruling in favor of Harvard University and against Trump’s vindictive assault – an assault that violated Harvard’s first amendment rights by seeking to suppress speech and ideas that Trump doesn’t like and by trying to dictate much of Harvard’s hiring, curriculum and admissions policies.
The court should also issue a forceful ruling that demolishes Trump’s arguments that he caninvoke the 1798 Alien Enemies Actto deport alleged Venezuelan gang members en masse without due process. The court should trumpet the absurdity of Trump’s claim that Venezuelan immigrants constitute an invasion force the way, for instance, British troops constituted an invasion force during the war of 1812.
The court should also shoot down Trump’s efforts to gut federal agencies and freeze funding by making it emphatically clear that those efforts violate Congress’s article I spending power. The conservative supermajority should also rethink its intention to overturn the 1935 ruling that limits presidents’ ability to fire members of independent agencies. That ruling sought to ensure that those agencies didn’t become partisan puppets that do whatever a president wants – something that no one should want when the nation has such a vengeful and capricious president.
With the Roberts court slated to issue a flood of rulings by early July, the justices have an important choice: to bend to Trump or to grow a real backbone. Does the Roberts court want to be remembered as cowardly enablers who helped the most authoritarian and lawless president in history consolidate power? Or do the justices want to be remembered as determined defenders who stood up to an authoritarian bully to protect our laws, our constitution and our democracy?
Steve Greenhouse is a labor reporter