The Supreme Court Term that ended last week was not as momentous as any of the three that preceded it. Three years ago, the Court eliminated the constitutional right to abortion. Two years ago, the Court forbade most race-based affirmative action in higher education. Last year, the Court fashioned a near-absolute immunity from criminal prosecution for former presidents and did away with the longstanding practice of judicial deference to federal administrative agencies.
Yet if the most recent Supreme Court Term included few blockbuster, precedent-changing decisions, it nonetheless revealed the true colors of the current iteration of the Roberts Court. The picture those colors paint is of a deeply conservative Court. More troubling still, the Court’s conservatives appear not to recognize the profound threat that the second Trump administration poses to constitutional democracy. Indeed, as I explain below, they may actually share many of the current administration’s goals. To see why requires that we disaggregate the Court’s work.
Routine Non-Ideological Cases
Supreme Court cognoscenti sometimes push back on the notion that the Supreme Court is driven mostly by politics by pointing to the large number of cases it decides either unanimously or otherwise on a non-ideological basis. Statistics (available at SCOTUSblog) seem to support this view. For example, in the most recent Term, 42 percent of the Court’s rulings were unanimous, and only nine percent produced a 6-3 conservative/liberal split.
Yet those aggregate numbers disguise what nearly all astute Court-watchers know. The Court divided 6-3 on ideological grounds in the most high-profile and important cases, including: United States v. Skrmetti, upholding Tennessee’s ban on gender-affirming care; Mahmoud v. Taylor, which gives parents a free exercise right to have their children exempted from public school lessons inconsistent with their religious views; and Trump v. CASA, which bars federal district courts from issuing broad injunctions against the president except in rare circumstances. And that is not to mention the emergency docket cases in which the Court—sometimes without any explanation—stayed lower court injunctions against Trump administration policies.
The Court did not divide ideologically in most of its other cases because most of those other cases did not present ideologically divisive issues. Here is an example of a unanimous decision: In Soto v. United States, the Court held that a law providing “Combat-related special compensation” displaces the settlement mechanism of the Barring Act for certain claims against the government. Here is another: In Dewberry Group, Inc. v. Dewberry Engineers, Inc., the Court ruled that a prevailing plaintiff in a trademark infringement case is entitled to the profits of a defendant corporation but not those of non-parties affiliated with the defendant.
Did you follow that? Are you still awake? Of course, cases like Soto and Dewberry are important to the parties. They also serve the useful purpose of resolving some of the innumerable issues of statutory interpretation that arise in a complex society and divide the lower courts. But they are hardly the reason we care so much about the backgrounds and values of Supreme Court justices.
A Comparative Perspective
It may be helpful to think of the Supreme Court’s work by contrasting it with the way in which jurisdiction is carved up in France. There, the Cour de Cassation is the apex court of ordinary criminal and civil litigation, the Conseil Constitutionnel hears cases arising under the constitution, and the Conseil d’État hears administrative cases, including disputes between individuals and public officials. There is some overlap of jurisdiction, but we can think of the French system as distinguishing roughly among ordinary cases, constitutional cases, and cases, including some constitutional ones, that involve challenges to government authority in an administrative setting.
In the United States, the Supreme Court exercises all of those functions, but disaggregating them, we can see that the kinds of cases that tend to be non-ideological are broadly comparable to those that in France go to the Cour de Cassation. Tellingly, appointments to the Cour de Cassation are the least political among the three French high courts, with career judges staffing it. By contrast, positions on the Conseil Constitutionnel and some positions on the Conseil d’État are identifiably political.
It would be artificial and unhelpful to fully map U.S. jurisdiction onto the French system, not least because there are other important differences between the two legal systems, despite their common origins in the two great late eighteenth century democratic revolutions. Key differences include these: the U.S. has a federal system, whereas France has a unitary one; the U.S. has a common law tradition in which precedent plays a greater role than in the civil law system of France; and federal courts in the United States are forbidden from giving advisory opinions, but pre-enactment review is at the heart of the jurisdiction of the Conseil Constitutionnel (although since 2008 the Conseil has also had the ability to hear concrete cases).
Nonetheless, if we think of the Supreme Court as combining the ordinary mostly non-ideological housekeeping work of an apex court with the work of a constitutional court, we can see that in the latter capacity, the Justices’ ideologies matter a great deal.
Ideologically Laden Questions
At least since Justice Amy Coney Barrett’s appointment in 2020 solidified the Supreme Court’s conservative super-majority, the Court has been solidly conservative.
To be sure, one or another conservative Justice might partially defect from time to time. For example, Chief Justice John Roberts agreed with the outcome of Dobbs. v. Jackson Women’s Health Org. in 2022 but expressed reservations about the majority’s willingness to overrule Roe v. Wade “all the way down to the studs.” Likewise, Justice Barrett agreed with the majority in Trump v. United States that then-former President Trump was entitled to broad immunity from criminal prosecution but disagreed with the part of the lead opinion that barred the use of official act evidence to prove even unofficial acts.
But it is worth noting that the Chief Justice and Justice Barrett concurred, rather than dissented, in those respective cases. And even if we count the reservations they expressed as substantively important, each defection still left a five-Justice conservative majority. The key feature of a conservative super-majority is that the conservatives can afford to lose any one of their number on any given case and still prevail.
Treating Trump Like a Normal President
The observation that ideological druthers make a big difference on the Supreme Court is more or less timeless. Whether liberal or (more frequently in our history) conservative, the Court construes open-ended constitutional text as it applies to circumstances that the framers could not possibly have anticipated. Accordingly, much of what I have written here could have been said at just about any time in U.S. history.
There is, however, one way in which the current situation is unprecedented. At no previous period was the federal government led by an administration that was openly hostile to our democratic traditions and the rule of law itself. That is not to deny that prior administrations played hardball. Thomas Jefferson signed legislation abolishing federal judgeships. Andrew Jackson did not actually say “John Marshall has made his decision; now let him enforce it,” but the apocryphal story carries a kernel of truth. Abraham Lincoln defied a writ of habeas corpus. Franklin D. Roosevelt threatened to pack the Court to validate the New Deal.
Yet Donald Trump is not like any of those or any other prior presidents. Despite their excesses, Jefferson, Jackson, Lincoln, and FDR had genuine regard for the country’s wellbeing and its democratic traditions. Although Trump sometimes fashions himself a populist in the Jacksonian mold, his admiration for dictators, monetization of the presidency, and vindictive use of the levers of government power reveal him to be an authoritarian who will use or defy the nation’s institutions wholly opportunistically.
Nonetheless, in case after case, the Roberts Court treats Trump like a normal president. Trump v. CASA is a telling example. Justice Barrett’s majority opinion correctly recounts the fact that universal injunctions have been used to stymie the policy agenda of both Democratic and Republican presidents. However, as dissents by both Justices Sonia Sotomayor and Ketanji Brown Jackson note, in so doing, the Court “plays along” with what the former aptly describes as the Trump administration’s cynical “gamesmanship” in the service of evading judicial invalidation of its unlawful policies.
Deflection or Agreement?
Why is the Roberts Court not just allowing but facilitating Trump’s defiance of court orders and assault on the rule of law? There are two main possibilities.
One is that Chief Justice Roberts is emulating his wily predecessor, Chief Justice Marshall. In Marbury v. Madison, Marshall avoided a confrontation with Jefferson even while asserting the Court’s power. In Stuart v. Laird, the Marshall Court (with Marshall ceding the opinion because he had sat on the case below but surely playing a role behind the scenes) passively allowed the Jeffersonian Congress to abolish occupied federal judgeships without formally deciding whether doing so violated Article III’s guarantee of life tenure.
It is possible that Chief Justice Roberts and a majority of the Supreme Court recognize the threat that Trump poses to constitutional democracy but are trying to avoid a direct confrontation, lest it go badly for the courts and the rule of law. Cognizant that, as Alexander Hamilton wrote in Federalist 78, the judiciary “has no influence over either the sword or the purse,” perhaps the Roberts Court is acquiescing in Trump policies in the hope that the courts can survive to fight another day.
But with each victory the Roberts Court hands the Trump administration, that explanation seems less and less plausible. Trump is a bully but maybe, like most bullies, he would back down if forcefully confronted, as the TACO (“Trump Always Chickens Out”) meme suggests. Moreover, experience in other countries that have witnessed backsliding from democracy to authoritarianism shows that it is easier to halt the slide earlier than later. Accordingly, the Roberts Court’s kid-gloves treatment of Trump makes little sense as a method of preserving constitutional democracy.
It makes more sense, however, if the conservative super-majority in fact regards Trump as a normal Republican president. No doubt the Court’s conservatives are much less coarse than Trump in their style, but perhaps as a matter of substance, we are witnessing something much more alarming than a Supreme Court walking on eggshells to avoid the president’s rage. Perhaps we are witnessing the emergence of the MAGA Court.
