Month: July 2025

At the beginning of 2025, even after the Roberts Court’s majority abandoned the Constitution to grant Donald Trump virtual immunity from criminal prosecution in Trump v. United States last summer, there was more or less a consensus among commentators that SCOTUS would uphold the rule of law. Many commentaries looked to the court (some with expectation, others with hope) to reign in Donald Trump’s lawless activities. (Even this mistrustful blogger, who was not part of this consensus, hoped to be proven wrong. Alas, it was not to be.)

After months of watching the Republican majority enable Trump’s trampling over generations of political norms, legal precedents, and an understanding of Congressional authority the Roberts Court is no longer getting the benefit of the doubt. This week in the Atlantic (“This Is the Presidency John Roberts Has Built”), legal scholar Peter M. Shane (who has written two books warning that presidential aggrandizement is eroding American democracy) points to a collection of Supreme Court decisions written by Roberts that have legitimized the extraordinary expansion of executive power wielded by Trump.

After a review of opinions authored by Roberts, Shane writes:

Going beyond the precise holdings in these cases, Roberts’s superfluous rhetoric about the presidency has cast the chief executive in all-but-monarchical terms. The upshot is a view of the Constitution that, in operation, comes uncomfortably close to vindicating Trump’s: “I have an Article II, where I have the right to do whatever I want as president.”

Shane adds, “What America is witnessing is a remaking of the American presidency into something closer to a dictatorship.”

On the Roberts legacy:

In the two decades of his tenure thus far, his opinions on executive power have created what might be called a proto-authoritarian canon, lending constitutional legitimacy to a kind of presidency that brooks no dissent, treats Congress as a subordinate institution, and need answer to no one except possibly to the Supreme Court itself.
It is hard to overstate how much is wrong in Roberts’s narrative of the presidency. It muddles constitutional text. It flouts constitutional history. It is willfully ignorant of the risks of authoritarianism in a polarized, populist age.

In a previous post, I referenced Trump v. United States:

In April 2025 we’re living with the inevitable consequences of that reckless ruling. The Supreme Court won’t check Donald Trump because the Republican majority has deliberately paved the way for Trump’s lawless assault on our democracy. Trump is the “bold and unhesitating” president this court has lionized.

Shane is on the same page: “Trump’s use of executive power is not a distortion of the Roberts Court’s theory of the presidency; it is the Court’s theory of the presidency, come to life.”

Allowing Trump’s defiance of trial and appellate courts

Public policy professor Don Moynihan observes that fears that Trump would defy the courts have receded as “six Republican-appointed justices” repeatedly swoop in to overrule the lower courts:

A couple of months ago, the major concern was what would happen when Trump defied the courts. A more complicated picture is now emerging. One that mixes quiet but unmistakable defiance of court decisions by the Trump administration with encouragement from the six Republican-appointed Justices who sit atop the judicial branch. This is an arguably worse scenario, since it provides a veneer of legalism even as it replaces the rule of law with rule by law, where Trump is allowed to determine the nature of that law.
The emerging pattern is that the Trump administration is checked by the lower courts, slow-walks compliance, and sometimes asks SCOTUS for help, which they usually provide via poorly reasoned opinions or no opinions at all. The Supreme Court often does not feel the need to explain what are effectively constitutional amendments that rebalance the separation of powers, feeding perceptions of the court as a partisan actor.

A partisan actor indeed. I recommend Moynihan’s analysis (“When you’re a star, the Supreme Court lets you do it”), which illustrates how the court has diminished Congressional authority, enfeebled the lower courts, ruled inconsistently (based on the political party that holds the White House), and undermined the capacity of civic institutions to oppose to a lawless president.

Resistance to an authoritarian regime requires collective action and a judiciary willing to protect the rule of law. By empowering Trump above all branches, SCOTUS has weakened the environment for such resistance. And the Roberts court literally has argued that Trump, as President, “alone composes a branch of government.”
It would be a mistake to treat unitary executive theory as a coherent legal framework. It is an effort by Republicans to empower Republican Presidents, now being implemented by a Chief Justice who has long held such views. Here is how Trump understands it: “I have an Article II, where I have the right to do whatever I want as president.”

Six days ago I wrote, “It’s possible the Republican justices haven’t yet agreed on any specific rationale to put forward in McMahon; they simply agree on the result, which empowers Trump. They’ll construct their story later.”

This morning on NPR, Nina Totenberg said that getting five or six justices to agree on a rationale could prove difficult and “they don’t have the inclination.” She remarks that

the court’s critics, including often its own members, have repeatedly called out the practice of essentially leaving in place big, new policies without explaining its reasoning. The dirty little secret here is that if you’ve got the votes, you’ve got the votes. And if the justices actually wrote the whys and wherefores, the likelihood is that they wouldn’t agree. Writing an opinion for nine justices, or even six, or even five, can be very hard. And to put it bluntly, they think they don’t have the time and they don’t have the inclination.

Trump’s transformation of our democracy into an authoritarian regime (consistent with the Project 2025 plan) relies on the coordination of all three branches of government. Without the acquiescence of a compliant Congress willing to do Trump’s bidding and a Supreme Court sweeping aside a Constitution built on the separation of powers it would be possible to put a stop to much of what we’ve experienced in the past six months.

What we’ve lost

The dirtiest little secret — though it is quickly, unmistakably coming into focus — is that the Republicans on the Roberts Court have greater fidelity to the MAGA vision than to the Constitution of the United States. This is a shamefully partisan court. Due process, the rule of law, the authority of Congress to work its will, limits on presidential power, and individual liberty as widely understood before John Roberts became chief justice — the Republican supermajority has trashed all of this in service to an authoritarian ideal.

The cost to American democracy has been enormous. Article I established a democratically elected Congress. What are Americans to think when independent agencies, established by Congress to serve the general welfare, are diminished or wiped out with the stroke of a pen? Expertise and resources to sustain public health, scientific research, financial protection, national parks, … even timely, lifesaving weather reports — diluted or cast off altogether.

The institutions of civil society capable of checking (in some measure) the colossal power of the state — attacked by the executive branch. Organizations that convey news and information, necessary to hold government to account — harassed until the president receives a payout. Universities, law firms, advocacy groups, even individuals — threatened and tormented by the government of the United States.

That, and more, distressingly characterizes the new regime, which the Roberts Court has whitewashed with “the veneer of legalism.” We would not be confronting this undemocratic, unaccountable state had not the Republican justices defied the plain text of the Constitution, choosing instead to favor a MAGA perversion of America.

Last week, in an unsigned order (LINDA MCMAHON, SECRETARY OF EDUCATION, ET AL. v. NEW YORK, ET AL.), the Republican-appointed majority on the Supreme Court swept away a district court ruling that had blocked mass firings in the Department of Education. The district judge had determined that the Trump administration intended to dismantle the department, though it lacked the authority to do so. The SCOTUS majority ruled — without a jot of explanation — that the firings may continue.

President Trump, consistent with Project 2025, has directed (by executive order) “the closure of the Department of Education.” Nineteen states (and other groups) filed suit to block the move, arguing that the action violated the Constitution and federal law. The Trump administration filed an emergency appeal; at least five of the Republican-appointed justices stayed the lower court’s decision (without deigning to say why).

Justice Sotomayor penned a 19-page dissent, joined by Justices Kagan and Jackson.

When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it. Two lower courts rose to the occasion, preliminarily enjoining the mass firings while the litigation remains ongoing. Rather than maintain the status quo, however, this Court now intervenes, lifting the injunction and permitting the Government to proceed with dismantling the Department. That decision is indefensible. It hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.  

Sotomayer observed that

the Government does not defend the lawfulness of its actions. Rather, in a now-familiar move, it presents a grab bag of jurisdictional and remedial arguments to support its bid for emergency relief. None justifies this Court’s intervention.

Her dissent concluded:

The President must take care that the laws are faithfully executed, not set out to dismantle them. That basic rule undergirds our Constitution’s separation of powers. Yet today, the majority rewards clear defiance of that core principle with emergency relief. Because I cannot condone such abuse of our equitable authority, I respectfully dissent.

Quinta Jurecic observed (the week before the McMahon decision came down):

A clear pattern has emerged in the extended back-and-forth over the legality of many Trump-administration actions. Donald Trump or a member of his Cabinet takes a certain step—say, firing an official protected from such removal, or destroying a government agency established by Congress, or seeking to ship a group of immigrants off to a country where they may be tortured or killed. Then, a lawsuit is quickly filed seeking to block the administration. A federal district judge grants the plaintiffs’ request, typically in an order that prevents Trump from moving forward while that judge weighs the underlying issue. An appeals court backs the district court’s decision. So far, so good for the plaintiffs. Then the administration takes the case to the Supreme Court—which hastily upends the lower courts’ orders and gives Trump the go-ahead to implement his plan.

On the day of the McMahon ruling, Steve Vladeck noted:

Since April 4, #SCOTUS has issued 15 rulings on 17 emergency applications filed by Trump (three birthright citizenship apps were consolidated).
It has granted relief to Trump … in all 15 rulings.
It has written majority opinions in only 3.
Today’s order is the 7th with no explanation *at all.*

Since April 4, #SCOTUS has issued 15 rulings on 17 emergency applications filed by Trump (three birthright citizenship apps were consolidated).It has granted relief to Trump … in all 15 rulings.It has written majority opinions in only 3.Today's order is the 7th with no explanation *at all.*

— Steve Vladeck (@stevevladeck.bsky.social) 2025-07-14T19:38:43.267Z

In June, Professor Vladeck observed on One First:

My friend and University of Michigan law professor Leah Litman is responsible for two of the most memorable lines about the current Court: That it’s a “YOLO” Court (you only live once), and that its defining characteristic is “no law, just vibes.” It seems to me that events of the past few months have provided a heck of a lot of fodder for those who ascribe to Leah’s view—and some pretty troubling questions for those who continue to claim that this Court is driven by analytically coherent and politically neutral legal principles in its decisionmaking. Some readers may think this has been clear for some time; others may dispute whether it’s even true today. 

I am among the readers who “think this has been clear for some time” — though I am not an attorney. I regard the pattern as discernible to anyone who follows American politics, while keeping one eye on the Roberts Court.

What’s wrong with this pattern? Justice Sotomayer’s dissent suggests why the Roberts Court decision to grant a stay is confounding. This was by no means an emergency. The district court had frozen the status quo; there was no compelling reason (before considering the case on the merits) to permit the firings to continue. Furthermore, the harm to the plaintiffs by staying the district court order far outweighed the harm to the federal government by keeping it in place. And, based on the constitutional separation of powers and settled law, there is no reason to suppose that the Trump administration would win the case on the merits (still being considered at the district court and ignored by the Roberts Court’s majority).

Furthermore, outrageously, the Roberts Court majority is mum about its reasoning, offering a single paragraph describing procedural matters, to clarify its decision. It offers no hint of a rationale, much less a legal principle to spell out its reasoning. There is no way for anyone — district judge, law professor, practicing attorney, American citizen or resident, or even a dissenting justice — to understand why (that is, on what legal basis) the court ruled as it did.

Partisan politics, not law

Fair-minded constitutional attorneys at law schools and public policy institutions focus on law, not politics. Vladeck and Jurecic are (perhaps impatiently) waiting for the court to offer an explanation of its actions (based on the Constitution, federal legislation, and judicial precedent) in a future decision. And so far in the first half of 2025, the Roberts Court is hiding the ball.

Let’s switch perspectives. In my view, it’s politics, not constitutional interpretation that best explains what the Roberts Court is up to. I’ve watched SCOTUS since before it became the Roberts Court. And, in my view, an understanding of American politics — and the dynamics of the contemporary Republican Party, which dominates all three branches of the federal government — not legal scholarship offers the most coherent, convincing explanation of the machinations of the current Supreme Court.

In short, I believe that in a range of partisan cases* the court’s majority (whatever it takes itself to be doing) is moved more by fidelity to the agenda of the Republican Party, than to any constitutional or legal principles.

*Most especially cases related to voting and elections (including campaigning, fund raising, and apportionment) and governing (especially as it relates to the authority of the three branches of government) — each of which provoke sharp partisan disagreement between Republicans and Democrats.

By ruling in favor of Trump and McMahon, SCOTUS assures that the dirty work will be complete by the time the district court reaches a decision on the merits. The Department of Education will be gutted. The Republican majority will endorse the decision in time. The Roberts Court is advancing the MAGA agenda — with virtually every shadow docket ruling. It is hiding the ball (the reasoning that it will eventually offer to underlie its decisions) for now, which has the advantage of keeping its options open. By withholding precepts or principles now, it will have a full toolkit to select from in the future.

It’s possible the Republican justices haven’t yet agreed on any specific rationale to put forward in McMahon; they simply agree on the result, which empowers Trump. They’ll construct their story later. For now, they are strategically keeping their powder dry.

Am I being too cynical?

Let me put it this way. For a number of years, even before the three Trump justices were in place, the most reliable way to predict SCOTUS decisions (in the range of partisan cases*)was to look at the policy preferences of the Republican justices, not at any purported approaches to interpreting the Constitution; not originalism, not textualism, not any consistent, coherent -ism embraced by the Federalist Society.

In a February post(at a time when observers were discussing whether or not the Roberts Court would put a stop to the Musk-DOGE rampage through the federal government), I predicted flatly that the Republican majority would not stop Trump. I appealed to the immunity decision, Trump v. United States:

It is preposterous to think that the Roberts Court, after giving Trump immunity from criminal prosecution — including for ordering the nation’s military to assassinate a political rival — would stand in the way of mass purges of civil servants and shuttering departments and agencies. That’s a nonstarter.

In addition, I noted a trump card held by the administration. At a time when many commentators were predicting that Chief Justice Roberts would assert the authority of the court and insist that Trump adhere to court orders, I disagreed. Roberts’ fear of having Trump defy the court (humiliating SCOTUS) would ensure that Roberts would not block any Trump action — without providing alternative means for Trump to do whatever he wished. (In other words, any purported block would be flimsy by design.)

In an April post, the day after the court issued a stay of a lower court ruling regarding due process for the Venezuelans deported to El Salvador (Trump v. J.G.G., decided 5-4, with the Republican men comprising the majority), I noted that in my previous prediction

I didn’t address arrests by masked agents, deportations to Salvadorian prisons, bad faith appeals to national security, or denial of due process. But I’m consistent: the Supreme Court will not protect us from this rampage either.

We’ll see, soon enough, whether or not I’m right. So far, nothing I’ve seen in the first six months of the second Trump administration has prompted me to change my view. I’ll conclude with an excerpt from a June post:

The Supreme Court, with its Republican supermajority, is prepared to do its part in the MAGA campaign. Success requires the three branches of the federal government to act in concert. The court’s Republican majority has consistently (more than nine times out of ten) sided with the Trump administration. It will continue to do so, above all in the most significant cases.
The Roberts Court is prepared to shrug off constitutional limits on the president, to override well established judicial principles, and to sabotage the rule of law itself on behalf of the wannabe strongman in the White House. It will not stand in the way of the Project 2025 crusade. It will not constrain Donald Trump.

[Carlin Stiehl/Los Angeles Times]

The Trump administration is directing staged made-for-TV (or for-TikTok) spectacles familiar to tinpot dictators. No American alive has witnessed anything quite like this before. The effort, designed to intimidate, has been successful thus far. It is the advent of a police state.

Yesterday in Los Angeles, California, scores of armed, masked federal agents, outfitted in military fatigues and helmets, marched across a city park, led by agents on horseback — backed by the National Guard, as armored vehicles with gun turrets blocked Wilshire Boulevard and a Black Hawk helicopter flew overhead. Minutes before the U.S. conquest of MacArthur Park, children at summer camp had been rushed from the soccer field into safety.

“What I saw in the park today looked like a city under siege, under armed occupation,” Mayor Karen Bass said in a news conference on Monday afternoon, adding that she had traveled regularly into conflict zones as a member of Congress. “It’s the way a city looks before a coup.”

The mayor called out the operation as un-American, asking: “What happened to the criminals, the drug dealers, the violent individuals? Who were in the park today were children. It was their summer camp, their summer day camp.”

City councilmember Eunisses Hernandez, in whose district the park sits, had a message for Americans: “Please understand that what’s happening here in the city of Los Angeles, we are the canary in the coal mine. What you see happening in MacArthur Park is coming to you … So wake up.”

This malicious regime will continue in Los Angeles, as Gregory Bovino, a Customs and Border Protection chief in Southern California, confirmed. “Better get used to us now, cause this is going to be normal very soon,” Mr. Bovino told a Fox News reporter. “We will go anywhere, anytime we want in Los Angeles.”

This isn’t bravado, nor may we expect it to be confined to a single Democratic-led city. Not after the Republican majority in Congress approved Donald Trump’s Big Beautiful Bill, which provides $170 billion for Trump’s expansive border and immigration efforts, extending the coercive reach of the federal government.

Theda Skocpol (Harvard sociologist and political scientist) observed that while the huge tax giveaways for the hugely wealthy and the unprecedented cuts to healthcare and food assistance are significant, the “massive militarization of ICE is the real heart of this law – didn’t J. D. Vance say just that a little while ago?“

He did indeed: “Everything else—the CBO score, the proper baseline, the minutiae of the Medicaid policy—is immaterial compared to the ICE money and immigration enforcement provisions.”

Everything else—the CBO score, the proper baseline, the minutiae of the Medicaid policy—is immaterial compared to the ICE money and immigration enforcement provisions.

— JD Vance (@JDVance) July 1, 2025

Since law enforcement in the United States is primarily the province of state and local governments, Skocpol thought (last spring) that our country was protected from an authoritarian takeover. That was then.

But now I see that the Miller-Trump ethno-authoritarians have figured out a devilishly clever workaround. Immigration is an area where a U.S. President can exercise virtually unchecked legal coercive power, especially if backed by a Supreme Court majority and corrupted Department of Justice. Now Congress has given ICE unprecedented resources – much of this windfall to be used for graft with private contractors Trump patronizes, but lots of to hire street agents willing to mask themselves and do whatever they are told against residents and fellow American citizens. The Miller-Trumpites are not interested only in rounding up undocumented immigrants. They will step up using ICE and DOJ enforcements use to harass Democrats, citizen critics, and subvert future elections if they can.

Included in the $170 billion Republicans in Congress appropriated for border and immigration activities are $45 billion for detention centers, $30 billion for ICE to staff and run the centers, $46.5 billion to complete the border wall (though the money can be shifted to other DHS operations), $5 billion for Customs and Border Protection facilities, and a few billions more to round out the picture. These figures dwarf current spending. The 2024 ICE budget was $9.6 billion. The Bureau of Prisons budget for 2024 was $8.3 billion.

And remember: the raids and detentions are scooping up peaceful, working class immigrants, not murderers, rapists, drug dealers, or anyone else who poses a threat to the community. Few have criminal records or histories of violence.

Professor Skocpol identified the aim of Trump’s militarization of ICE “to harass Democrats, citizen critics, and subvert future elections if they can.” She concluded:

“This is the key story unfolding right now. Governors and civic groups and media outlets need to get clear on this imminent threat and work together across the board to reveal and push back against the emerging ICE police state.”