The Supreme Court Has Finally Found a President It Likes
"Mr. Edsall contributes a weekly column from Washington, D.C., on politics, demographics and inequality.
The six-member conservative majority on the Supreme Court has become a key enabler of President Trump’s agenda.
“Since May, federal district courts have ruled against the administration 94.3 percent of the time,” Adam Bonica, a political scientist at Stanford, writes in a June 25 Substack essay. “The Supreme Court, however, has flipped that outcome, siding with the administration in 93.7 percent of its cases. The Supreme Court is now in open conflict with the lower courts over cases involving the Trump administration.”
District court judges “who see the evidence firsthand and hear directly from those affected,” Bonica adds, “overwhelmingly find the administration’s actions unlawful. Circuit (Appeals) courts split more evenly (68.2 percent against Trump, 31.8 percent for Trump) but still lean against the administration. Then the Supreme Court — furthest from facts, closest to power — reverses almost automatically.”
Mark Graber, a law professor at the University of Maryland, described the situation by email. “Both Republican and Democratic judicial appointees have found numerous constitutional and statutory flaws with Trump administration policies.”
Faced with this surge of lower-court rulings against Trump and his appointees, Graber continued,
The Supreme Court almost without exception has been braking the lower federal courts rather than the Trump administration. This has been done largely through rulings without accompanying reasons explaining why the lower federal courts were so wrong. The result is in some cases all lower federal courts have to guide them is a sense that the Roberts court majority does not want lower federal courts interfering with the Trump administration.
“Universities,” Graber wrote, “fear being tied up in litigation for years. Even if they eventually win every case in the Supreme Court, the costs are likely to be substantial. If the Supreme Court permits Trump to implement his version of the law for two to three years, universities that oppose him will be damaged significantly.”
In addition, Graber said, “The Roberts court’s pro-Trump series of decisions creates reason for thinking that you might lose, even as every professor in your law school tells you the law is on your side.”
The court’s conservative majority appears to have adopted what is known as the unitary executive theory, which amounts to the empowerment of the president as the chief executive officer of the executive branch of government — as a chief executive sometimes would be in the private sector, as opposed to the top official of an executive branch fulfilling mandates specifically financed and authorized by Congress.
In another Substack essay, “How to Dismantle a Democracy, Legally: The Unitary Executive Theory Is a Masterclass in Autocratic Legalism,” Bonica argues that for the six conservative justices on the Supreme Court,
The unitary executive theory is not a principled theory of constitutional law being applied in good faith. It is a political weapon, wielded with partisan selectivity, designed to achieve a concentration of power that is fundamentally at odds with American democracy. It is the American face of autocratic legalism.
If, Bonica continues, “the unitary executive theory were a genuine constitutional principle, its adherents would apply it equally to all presidents, regardless of party. The evidence shows it is a principle of convenience, invoked to amass power and discarded when it might constrain allies.”
Bonica contends that the court has adopted a strategy of what he calls “selective application” in its use of the theory:
The uneven application is most stark in the court’s handling of nationwide injunctions — a powerful tool lower courts used to block controversial executive policies. The Biden Justice Department repeatedly asked the Supreme Court to limit this practice. The court refused. Yet, just five months into the second Trump administration, the court seized the opportunity in Trump v. CASA to do exactly that, stripping away a key check on executive power precisely when it most benefited its political allies.
The data from the court’s emergency “shadow docket” reveals the staggering result of this double standard. The court intervened to lift 77 percent of lower-court temporary restraining orders and preliminary injunctions against the Trump administration while lifting 14 percent of those against the Biden administration.
In an email, Joseph Fishkin, a law professor at U.C.L.A., wrote in support of Bonica’s argument:
It would take a fine legal mind indeed to explain why, for instance, Biden’s student loan relief plans so dangerously exceeded statutory authority that the court had to stop them immediately by injunction, whereas the court upheld Trump’s evisceration of that entire department, in contravention of the statute Congress passed. So yes, there are many examples: This court is unmistakably more interested in consolidating executive power under this president than under any Democratic president.
That said, Fishkin continued,
the most consequential decisions of the court in a unitary-executive direction are on matters like firing the heads of agencies set up by Congress to be independent of control from the White House, where Trump is the only modern president to really try it. You cannot point to all the heads of independent agencies the court refused to let Biden fire, because Biden and other presidents respected the laws Congress passed in this area, an approach that served the country well. We are now in uncharted waters.
Looking more broadly at the pattern of court decisions, Fishkin wrote:
The Supreme Court has diverged very sharply from the district and appellate courts since Trump took office in January. The trial courts are continuing to do what they always do: detailed factual findings and careful legal assessment of the administration’s actions in relation to precedent.
Regardless of political party, judges at the trial level are pretty consistently finding after investigation that many of the administration’s actions, especially its efforts to dismantle disfavored parts of the government, are unlawful. The Supreme Court, in contrast, has been reversing those lower courts and finding for the Trump administration, at a rapid clip — primarily with summary orders that do not provide adequate reasoning.
There was, in fact, strong but not unanimous agreement among the legal scholars I contacted that many of the Supreme Court’s Trump rulings remain cloaked in mystery because they lack clear explanation or justification.
Steve Vladeck, a law professor at Georgetown, published “Whose Judicial Overreach?” on his Substack recently. He argued that the problem facing defenders of the court is
their refusal to engage seriously with the repeated objections, from both the dissenting justices and outside critics, that the majority is shirking the traditional standards for granting emergency relief. I know that this strikes a lot of people like a hyper-technical point, but it goes right to the source of the Supreme Court’s power to grant emergency relief in the first place.
That power comes from a pair of statutes, both of which the court has long interpreted to condition relief upon a four-part showing. Likelihood of success on the merits is an important part of that showing, but it is supposed to come alongside, and not at the expense of, the traditional balancing of the equities — whether the harm one side might face is so extraordinary so as to grant (or deny) relief notwithstanding the court’s assessment of the likely outcome.
To bolster his case, Vladeck cited the court’s July 14 ruling in McMahon v. New York, “in which the court cleared the way for the Trump administration to effectively cut the Department of Education in half,” lifting a lower-court order requiring the Department of Education to reinstate 1,400 recently fired employees. For those looking for some indication of how the court would rule if and when the case reaches there for a full-scale decision, Vladeck noted, the conservative majority “wrote … nothing,” meaning that “there’s no way to know if a majority of the justices thought the government is likely to prevail.”
Deborah Pearlstein, director of the Program in Law and Public Policy at Princeton, expanded by email on Vladeck’s argument:
Mostly in cryptic, unexplained, temporary rulings, the court majority has indicated it is ready to overrule nearly century-old precedent upholding the constitutionality of independent agencies, allowing Trump’s summary firings of agency heads in violation of existing laws to stand while legal challenges make their way through the courts.
It is even unclear at this point whether the court will uphold the constitutionality of century-old protections for civil service officials — protections contained in laws enacted to end the 19th-century spoils system and require instead that federal employees have basic qualifications for their jobs, rather than just being loyalists to the current political regime.
The result?
The current administration is well aware of the majority’s longstanding views of unitary executive power, and the president has been firing officials left and right despite existing laws prohibiting these removals, in the expectation (so far borne out) that the court will not stand in his way.
What’s most harmful about the court’s approach, Pearlstein continued,
is its apparently categorical judgment that the president should be able to proceed with his agenda in full — even aspects of it (like birthright citizenship) the court itself may eventually conclude are manifestly unconstitutional — during the months or even years it takes the courts to determine their legality once and for all.
It seems to have emboldened the president further — giving him, and everyone else, the impression that no matter how clear the existing federal law on the books, how old the precedent upholding it, all bets on the past two centuries of American constitutional law are effectively up for grabs. It is the most destabilizing role I have ever seen the court play in American life.
In other words, the conservative majority is building a striking record of support for Trump.
“Since returning to the White House, Trump has issued 216 decrees premised on his unprecedented claim to presidential supremacy,” Bruce Ackerman, a law professor at Yale, wrote by email:
To nobody’s surprise, these initiatives have provoked a flood of litigation — leading 18 federal courts to issue preliminary injunctions against the implementation of particularly problematic decrees. In response, the Justice Department called upon the Supreme Court to reverse these decisions in the fashion permitted by its “emergency docket” — which allows the justices to intervene in a rapid-fire fashion without even publishing an opinion justifying their intervention.
The court said yes to all of these petitions — and, despite minority dissents, liberated the administration from these injunctions in all 18 cases. In 15 of them, moreover, the majority was composed only of justices appointed by Republican presidents. In seven of them, they issued their Emergency Orders without publishing any justification for them whatsoever; even when they published a statement, it typically contained only a paragraph or two in defense of its order.
These blatantly partisan decisions raise an even more fundamental question: Was it legitimate for the Republicans to invoke the “emergency docket” in the first place? As the label suggests, this docket is reserved for cases where litigants can show that they will “be irreparably damaged” unless the court intervenes. Yet, if the court had waited to hear these cases in a thoughtful fashion, after considering the briefs and oral arguments of the contending parties, no such emergency would arise — unless Trump decided to disobey the orders issued by the lower courts or to call his MAGA followers into the streets in protest.
Laurence Tribe, a law professor at Harvard, elaborated by email on these arguments:
Starting with the court’s unprincipled and unprecedented 2024 ruling conferring sweeping immunity from prosecution of former presidents for crimes committed while in office in Trump v. United States, the Roberts-led majority has continued to lower the guardrails on presidential violations of core constitutional and statutory restrictions by handing down a series of mostly unexplained decisions rendered without argument or anything like full briefing — decisions whose upshot has been to let Trump engage in conduct that will have caused irreparable harm by the time it’s almost certain illegality could be pronounced.
Richard Pildes, a law professor at N.Y.U., argued in an email that the adoption of the unitary executive theory by the court’s conservative majority has provided a rationale for many of the court’s decisions, including decisions to postpone hard-and-fast rulings. If taken to its logical extreme, Pildes wrote, “Embracing the unitary executive branch theory would overturn around 90 years of precedent and practice, going back to the New Deal era Humphrey’s Executor case in 1935.”
To no one’s surprise, Pildes continued, “President Trump has put the issue squarely before the court by firing the heads of various independent agencies.” While the court has not issued a final decision, it has stayed lower-court rulings blocking the firings, and in Pildes’s view, “it’s clear a majority of the court endorses the unitary executive branch view, at least on the question of whether the president must have the power to remove at will the heads of administrative agencies.”
The court’s approach to Trump cases is a significant change, with major consequences, John Mikhail, a law professor at Georgetown, argued by email:
The court used to pride itself on what lawyers called “reasoned elaboration”— the practice of giving well-grounded justifications for its rulings. Its increasing use of the “shadow docket” to resolve disputes without briefing, argument, or adequate justifications, however, is causing more people to lose confidence in the judiciary. And some of the court’s decisions in Trump’s favor on its regular docket have also fallen short of this ideal.
All of these developments have indirectly contributed to Trump’s image as someone so invincible that submission is the only reasonable tactic. I’m inclined to agree with those commentators who maintain that it would be inaccurate and unfair to dismiss the court as a mere extension of the second Trump presidency and that the court can be an important counterweight to his administration. Yet thus far the court has been uneven at best in fulfilling that critical role.
Mikhail emphasized in his comments how the court’s choice of specific procedures in addressing cases produces consequential outcomes:
The Supreme Court has mostly enabled Trump’s agenda, but it has done so primarily for procedural, not substantive, reasons. A majority of the justices seems committed to a “formalist” conception of the judicial role, in which substantive issues should not be resolved until they come to the courts in the right posture.
One consequence is that the public must wait longer to learn what the court really thinks about the underlying legal issues. But it also means that the administration can often keep pursuing its agenda without a definitive ruling on the merits of those issues.
The unitary executive theory, Mikhail wrote, “comes in many flavors,” but
In cases such as Trump v. United States (the presidential immunity case) and Trump v. Wilcox (the case involving Trump’s removal of members of the National Labor Relations Board and the Merit Systems Protection Board), six justices have made clear that they embrace a strong form of this theory, according to which many significant unenumerated government powers, such as the power to bring prosecutions on behalf of the United States and the power to fire government officials, belong to the president in virtue of the “executive power” vested in him by Article II of the Constitution.
The combination of the Supreme Court’s shift to the right, both on content and in form, and Trump’s autocratic approach is radically altering the character and content of American government.
“The court’s conservative revolution in jurisprudence and Trump’s authoritarian revolution in governance have, at least to date, had a symbiotic relationship,” David Pozen, a law professor at Columbia, wrote by email.
In terms of policy, Pozen continued,
The court’s decisions embracing the unitary executive theory, curbing the power of administrative agencies, breaking down the separation of church and state and eliminating race-based affirmative action and the federal constitutional right to abortion have mirrored and facilitated Trump’s agenda.
In terms of legal process, the court’s recent opinions limiting the ability of lower courts to issue nationwide injunctions and temporary restraining orders have made it harder for district judges to tamp down on executive branch lawlessness.
Alice Ristroph, a professor at Brooklyn Law School, in an email quoting the Supreme Court opinion in the 2020 case Trump v. Mazars, argued:
“The president is the only person who alone composes a branch of government ….”
To a majority of the court, “the executive branch” or “the executive power” corresponds to the singular person of the president, who can then assemble as many helpers as he likes, and he retains the power to remove any of those helpers at will.
The executive branch, Ristroph continued,
couldn’t do much if it were in fact just one person, but it can do a lot if it’s a couple million employees — from cabinet appointees and their staffs to the masked agents doing immigration raids, and many, many others — all understood as the instruments of a singular, unitary president. There’s a kind of “The king is dead; long live the king” puzzle in our current moment. The executive is unitary, just one person, and this enables the executive to be everything everywhere all at once.
There is one thing that is not a puzzle as Trump continues to govern by executive order: the failure of the Supreme Court to seriously address the constitutionality of Trump’s actions.
The court’s decision to lift the restraining orders of lower courts and to put off conclusive decisions has the effect of allowing Trump to inflict irreparable harm. The victims include the people Trump accuses of criminality, universities going without funds, medical researchers and their patients suffering from vanished grants, law firms unwilling to take on controversial pro bono cases, not to mention the tens of thousands of federal employees thrown out of work.
Trump’s use of the government to condemn adversaries and reward allies will leave an ugly scar, even in the unlikely event that sometime in the future the court reverses course and recognizes the depredation that Trump has left in his wake.
Thomas B. Edsall has been a contributor to the Times Opinion section since 2011. His column on strategic and demographic trends in American politics appears every Tuesday. He previously covered politics for The Washington Post."
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