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What’s happening?
Trump 2.0’s had a good week at the Supreme Court. Which means the rest of us and our Constitution have not.
Last Friday, a 5-4 majority let Trump keep stiffing schools and universities out of more than 100 education-related federal grants.
On Monday, a 5-4 court all but let Trump disappear scores of Venezuelan migrants with no due process to Salvadoran megaprison CECOT, all on allegations alone and under a founding-era law that by its plain language requires a “declared war” or “an invasion” by a “hostile nation” to justify its application.
On Tuesday, a 7-2 Court said nonprofits couldn’t challenge Trump’s mass firings of federal workers that a lower court blocked as likely illegal.
On Wednesday, Chief Justice Roberts put on hold the lower courts’ rejection of Trump’s attempt to overturn a 90-year-old legal precedent protecting independent agencies. The independence of the Federal Reserve could hang in the balance.
On Thursday, the Court did order Trump to “facilitate” the return of Kilmar Abrego Garcia, whom ICE deported with no due process to El Salvador’s notoriously abusive, cruel, and dangerous supermax CECOT prison. But again deferring to Trump’s ever-expanding executive powers, its vague order refused to require that Trump actually “effectuate” Garcia’s return, leaving the administration wide latitude to make excuses about why it can’t.
All this happened on the Court’s shadow docket.
What’s the big picture?
There was a brief moment last month when Chief Justice Roberts appeared to have the will—and the votes—to guide the lower courts towards finding against Trump’s flurry of illegal orders from his first days in office. Sure, it was part of the Chief’s dance to manage MAGA’s threats to defy court orders up to and including the Supreme Court itself. But at least, in that case, the bottom line held: Trump could not illegally freeze foreign aid funding the federal government had already obligated.
Since then, however, Chief Justice Roberts and Amy Coney Barrett have been taking turns as the fifth vote to slap down lower courts orders against this administration. As each case comes to the high court, one can imagine Roberts and Barrett furtively drawing straws on who will vote with the liberal dissenters to keep up the Court’s fading veneer of legitimacy.
Barrett, not Roberts, short-circuited the states’ fight for their schools’ education funding.
Roberts, not Barrett, said Judge Boasberg had no power to question whether Trump illegally invoked the Alien Enemies Act to send people to potential torture.
Both, however, rejoined their fellow Republican appointees to place their trust in Trump to “facilitate” Abrego Garcia’s release from CECOT, while suggesting that the district judge’s demand Trump do so failed to show “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Justice Sotomayor, in a statement joined by Justices Kagan and Jackson, said the Court should not have disturbed the district court order, but now that it has, urged the judge to “continue to ensure that the Government lives up to its obligations to follow the law.”
Roberts and Barrett are bobbing and weaving around Trump’s threats to preserve a perception of independence from him while they do his bidding where their agendas align—and Justice Jackson called it out in the education funding case. “[I]t appears that the primary effect of today’s emergency stay is to hand the Government an early ‘win’—a notch in its belt at the start of a legal battle in which the long-term prospects for its eventual success seem doubtful,” Jackson wrote.
Trump’s long-term prospects are considerably brighter in other cases where he seeks to aggrandize his presidential power. The full supermajority will very likely end this term accepting Trump’s demand to ratify his firing of members of independent agencies—in outright defiance of statutory limits on such actions—to overturn the foundational 1935 precedent Humphrey’s Executor, delivering another white whale to the Federalist Society by cementing Trump’s “unitary executive” power to bring independent agencies like the NLRB and FTC under his thumb.
What’s the broader context?
Like so much of the Roberts Court’s “doctrine,” its lurch toward consolidating executive power (and disempowering Congress, the People’s Branch) is the product of a decades-long Federalist Society campaign to disable consumer and environmental protections by rewriting the Constitution in the vision of its anti-regulatory corporate backers. They committed to the long game. In 1986’s Bowsher v. Snynar, when the early Federalist Society lawyers driving the legal front of the Reagan Revolution advanced the “unitary executive” theory at the Court, Justice O’Connor remarked: “Kind of a novel doctrine you’re espousing, and I can’t quite put a finger on that approach in any of this Court’s previous decisions.”
What a difference forty years—and hundreds of millions of dollars—make.
In the decades since Reagan’s stalled anti-regulatory revolution, operatives like Leonard Leo have funneled mind-boggling amounts of fossil fuel and other corporate money through dark money networks to hand-pick and install the Roberts Court’s supermajority. It has paid off in spades. The Roberts Court has smoothed the way for regressive authoritarianism at every turn—including through its anti-constitutional immunity decision ahead of the 2024 election, which preemptively pardoned Trump for any future criminal actions done in his “official capacity.” And Roberts and his fellow politicians in robes are nowhere near done aiding and abetting Trump’s spree of attacks against the American people.
Why does it matter?
Fundamentalists like Leonard Leo lit the fire, billionaires like Elon Musk poured gas on top, and now Chief Justice Roberts is fanning the flames.
When Roberts continues to let the Trump administration do what it wants—at the expense of our most basic rights and freedoms—he is inviting further abuses against all Americans. When he lets the Trump administration deport a legal resident with no due process to a foreign torture facility, he is sending the message that this could happen to any other legal resident, too, and the highest Court in the land might not protect them. When Roberts lets this administration get away with firing federal workers en masse and overturning agencies’ regulatory powers, he is signaling to Trump—again—that the Roberts Court is a tool in Trump’s toolbox, not a meaningful check on his power.
We have separated branches of government for a reason: to make sure one branch never grows too powerful or wields its power unchecked. When one branch cedes its power to an out-of-control executive by handing blank checks to one man and his billionaire cronies, it threatens all Americans’ safety, well-being, and ability to self-govern.
With a MAGA Congress and the Roberts Court both siphoning ever-more power to a President who believes himself to be king, we are quickly becoming a nation not of laws, but of men. As painful as it is to face, we must accept that these broken institutions will not save us from autocracy. That task— tall as it is—now falls to the people themselves.
What can you do?
Contact your members of Congress and let them know that you expect them to fight to protect the people’s power. Ask them how they plan to use their constitutional power to counter Trump’s unlawful actions and ensure Americans’ freedoms are protected.
Find your representative’s contact information here.
Tell your senator to vote against the so-called SAVE Act—a voter suppression bill designed to consolidate power in the hands of the wealthy and disenfranchise millions of Americans. Find your senator’s contact information here.
Learn more from Indivisible about how to make your voice heard by attending and speaking at town halls.
Share resources on immigrants’ rights and calls to action from the ACLU, United We Dream, the Immigrant Legal Resource Center, and others.
If you’re working to protect and strengthen democracy and need services related to physical security, cybersecurity, crisis communications, or legal advice and representation, learn about the Democracy Protection Network here.