It was a cabinet meeting unlike any other in American history. It was very long — all three hours and seventeen minutes of the spectacle were televised — and brimming with extravagant praise for the MAGA leader. While such stuff would not be at all unusual in foreign regimes headed by dictators, this one was all American. In the Cabinet Room of the White House.
The meeting … bore similarities … to meetings of ministers in other countries where leaders have sought to exert strong, personal control over large stretches of national life, scholars said, including in Russia and Turkey. . . . “It is definitely a widespread phenomenon with a lot of these personalist leaders,” said Andrea Kendall-Taylor, the director of the Transatlantic Security Program at the Center for a New American Security and a former intelligence analyst in the first Trump administration focused on Russia. . . . Nearly all presidents receive some flattery from their subordinates. The profuse nature of the praise for Trump, however, bore similarities to other countries where public displays of obedience are prized above all, Kendall-Taylor said. Trump “is like the great puppet master that’s making all the things dance and therefore work for the country,” she said. “This is just such a clear display that loyalty and fealty is the number one currency.”
There in the Cabinet Room — which is starting to take on the gilded-cage look of Mr. Trump’s Oval Office — all of the president’s men and women took their turns, each working a little bit harder than the last to offer Mr. Trump praise and to assure him that they were working to tackle his long list of grievances. That list is as ever-growing as it is specific to Mr. Trump’s pet peeves and political ambitions. It includes preventing “transgender for everybody” in American sports; using a heavy hand — perhaps the death penalty, the president said — to crack down on violent crime; the ongoing threat of windmills; the foul state of traffic medians; the speed with which water flows; and the attempts at securing peace deals for as many as seven international wars, a number that seems to grow by the day.
Marquez suggests that flattery becomes increasingly ridiculous when competition for rewards intersects with the dynamics of signalling personal loyalty.
loyalty signaling typically emerges when there is common knowledge that there are rewards or punishments arising from credibly and publicly recognizing (or failing to recognize) the leader’s exceptional qualities
If you are in a cult of personality centered on someone who has power, you want to reap the benefits of connection rather than suffering the penalties of disfavor. So how do you show your loyalty? By paying the costs of humiliation. The more grotesquely over the top your praise, the more credible it is as a signal of support for Dear Leader.
Voluntarily engaging in behaviours that incur peer disapproval or loss of dignity can credibly indicate one’s loyalty, as when people repeat obviously absurd flattery of the leader in public.
Apparatchiks’ willingness to degrade themselves will hurt their reputation with other people. But for exactly that reason, it serves as proof of loyalty to the one man who counts, Donald Trump. The more appalling the self-abasement, the more effectively it will serve this purpose.
All hail the transformational president
Trump’s “big, beautiful face on a banner in front of the Department of Labor.”
The man (if we can believe what we hear) has made Americans safer and America more secure. He has brought the American dream back to life, revived all industries that were once lost, will save the whale on the East Coast, and has already saved college football. Huzzah!
“You have brought us back from the edge. You have the overwhelming mandate from the American people.”
“This is the greatest cabinet working for the greatest president.”
“There’s only one thing I wish for—that the Nobel committee finally gets its act together and realizes that you are the single finest candidate since this Nobel award was ever talked about. Your success is game-changing out in the world today, and I hope everybody wakes up and realizes that.”
This is flattery hyperinflation. In Donald Trump’s executive branch, it is not knowledge or competency or a commitment to serving the country that matters — but loyalty to one man.
The folks in his cabinet know what’s up. Like presidents, prime ministers, diplomats, and CEOs across the globe, they know how susceptible to fawning flummery Donald Trump is. They understand the man. They understand the MAGA base. They understand the Republican media bubble. They are more than willing to play their parts.
And they will say just about anything to establish their loyalty.
I think many Americans wrongly believe there would be one clear unambiguous moment where we go from “democracy” to “authoritarianism.” Instead, this is exactly how it happens — a blurring here, a norm destroyed there, a presidential diktat unchallenged. Then you wake up one morning and our country is different. Today, August 25, 2025, is that morning. Something is materially different in our country this week than last.
That’s the judgment of Garrett Graff. Whether or not we agree with his argument (which I’ll return to in future posts), he makes a compelling case for the conclusion he draws. He continues:
Everything else from here on out is just a matter of degree and wondering how bad it will get and how far it will go? Do we end up “merely” like Hungary or do we go all the way toward an “American Reich”? So far, after years of studying World War II, I fear that America’s trajectory feels more like Berlin circa 1933 than it does Budapest circa 2015.
He points out (what many have noticed) that the mainstream media, doing its best to avoid stating this conclusion straightforwardly, softens its coverage of Trump with euphemisms. (He noted back in February this reluctance to report plainly and clearly what we have been seeing.)
The most powerful argument he offers for the loss of our democracy is a simple recitation of what we’ve all witnessed:
American fascism looks like the president using armed military units from governors loyal to his regime to seize cities run by opposition political figures and it looks like the president using federal law enforcement to target regime opponents. American fascism looks like the would-be self-proclaimed king deploying the military on US soil not only not in response to requests by local or state officials but over — and almost specifically to spite — their vociferous objections.
As the armed occupation of the District of Columbia continues, Trump, “exercising emergency powers in a moment where the only emergency is his own abuse of power,” has mused about sending troops to Chicago and other blue cities.
Civilians who try lawfully to exercise their right to document the abuses of the regime are themselves arrested and charged with felonies through trumped-up charges teeming with official lies. The fact that this military takeover and federal occupation is being done to the city’s residents — and not on their behalf — is evident in how deserted DC has become as residents refuse to enter public spaces where they might have to interact with agents of the state. America has become a country where armed officers of the state shout “Papers please!” on the street at men and women heading home from work, a vision we associate with the Gestapo in Nazi Germany or the KGB in Soviet Russia, and where masked men wrestle to the ground and abduct people without due process into unmarked vehicles, disappearing them into an opaque system where their family members beg for information.
There’s much more in Graff’s commentary. Corporate overlords paying tribute to Trump; the kidnapped and disappeared exiled to overseas prisons, while concentration camps are reopened at home; purges of folks with fidelity to the rule of law.
It has been abundantly clear for a while that the democracy we had on January 19 is long gone.
“We’ve slid into some form of authoritarianism,” says Steven Levitsky, a professor of government at Harvard, and co-author of How Democracies Die. “It is relatively mild compared to some others. It is certainly reversible, but we are no longer living in a liberal democracy.”
That was April. The evidence is much stronger now and Trumpist authoritarianism appears much less mild than it did a mere four months ago.
Political scientists who study democratic backsliding and authoritarianism may prefer competitive authoritarianism or personalist autocracy to straight up authoritarianism or fascism to describe the U.S.A in August 2025. But for small-d democrats, the direction we’re headed in and much of the damage we’ve already witnessed are unmistakable. Unlike the elite mainstream media, we need to be clear-eyed about it.
And as Graff concludes, though our success is hardly guaranteed, we must be prepared to fight back.
[August 28: mangled word choice in penultimate paragraph revised for clarity.]
This was an American republic built on multiracial pluralism. A nation of natives and of immigrants from around the world. Of political parties that strove to represent a diverse cross-section of society. Of a Black president and a future “majority-minority” nation. There was an ugly side — it’s no coincidence that state retrenchment from public goods and services followed the crumbling of racial barriers. But for all its harsh notes and discord, this was the closest the country ever came to the “composite nation” of Frederick Douglass’s aspirations: a United States that served as home to all who might seek the shelter of the Declaration of Independence and its “principles of justice, liberty and perfect humanity equality.” It’s this America that Donald Trump and his movement hope to condemn to the ash heap of history. It’s this America that they’re fighting to destroy with their attacks on immigration, civil rights laws, higher education and the very notion of a pluralistic society of equals.
Destruction of this America is the Trump/MAGA/Project 2025 agenda, embraced by a Republican Party in control of all three branches of the federal government.
There is no question that American democracy faces its most severe test in my lifetime. The scale, scope and speed of the onslaught within the first year (of Trump’s second term in office) is like nothing I have seen among the similar recent cases of democratic backsliding that I have researched — Hungary, Turkey, Poland or India. The degree of lawlessness of America’s current democratic decay is particularly striking.
Ziblatt has affirmed a critical role of civil society, which has
the civic resources to confront this challenge. America’s vast civic infrastructure includes labor unions, religious organizations, business, universities, the nonprofit sector, not to mention an opposition party that is better organized and more well financed than opposition parties in other 21st-century cases of democratic backsliding. Yet I worry. The question is not whether these groups exist but rather whether civic leaders will develop the courage to work collaboratively and effectively to reverse America’s authoritarian turn.
We have every reason to worry. The failure of civic leaders has been astonishing, not the least leadership of the Democratic Party.
Right now Republicans control Washington. They’re going to push through their nominees. They can pass a lot of laws. The only sensible and dignified course of action is to accept that Republicans are in charge and to focus in on making their unpopular actions as painful as possible. Every Republican member of the House owns all the pardons. Susan Collins owns all the pardons. Not complicated. It’s sitting right there. There’s no need for one big strategy. Everyone should be doing everything, always on the attack. We live in an era of a thousand cuts. The job of the opposition is quite literally to oppose. Get to it.
Yes. The job of the opposition is quite literally to oppose. And without any power in Congress, that means to accept that Republicans are in charge and to focus in on making their unpopular actions as painful as possible.
Democrats’ belated recognition
Yet, seven months later, it is clear that the opposition party, living now in a fundamentally different regime than before, has been slow to recognize the new reality. Democrats cling to procedures, norms, rules that signal legitimacy, as Julia Azari suggests.
Since January 2025, American politics has shifted decisively away from being based on legitimacy, and is instead now mostly a game of power. In other words, the Trumpist GOP – which controls the federal government and much at the subnational level – uses whatever power is available to them, without much concern about legitimacy. Typically, in a democracy, uses of power would be limited by what can be justified in terms of democratic values, accepted practices, and norms like reciprocity. This viewpoint about how politicians treat power in a democracy builds on some of what Levitsky and Ziblatt argue about forbearance and mutual toleration. In the pieces I’ve written on democratic values, I’ve emphasized the importance of recognizing legitimate opposition – similar to Adam Przeworski’s definition of democracy as a system in which “parties lose elections.” We’re all saying different versions of the same thing. Democratic rhetoric plays an important role in a politics that is based on legitimacy. Politicians justify their actions in terms of shared values and practices – not by vilifying their opponents, or, by the righteousness of their cause. Much of this has gone by the wayside as the Trump administration asserts its right to – for example – reinterpret the 14th amendment by fiat, undermine due process, and ask states to redistrict to gain more Republican seats.
And that’s hardly the complete list of transgressions. This context, for Azari, explains why governors (J.B. Pritzker, Gavin Newsom) are better positioned to step up to the challenge than members of Congress. Governors wield power independently of the federal government. And they are freer from the constraints of representatives and senators.
As the courts now interpret the law, the president is an absolute monarch within the federal government. He can fire anyone at will. He can set aside statutes under the guise of enforcement that is “aligned” with administration “vision” and policy. No one anywhere in government that is plausibly part of the executive branch can enter into a contest or struggle with the president. If they do, he simply fires them, sends them to the ersatz constitutional cornfield as the boy Anthony did in that famous dystopic Twilight Zone episode. But the president can’t fire governors or mayors or secretaries of state or anyone else in a state government.
Historically unpopular president
The basic task for the opposition remains constant: to make MAGA’s unpopular actions as painful as possible. Whether from the vantage point of a member of the House or the Senate — with limited formal power, or a governor or state attorney general — who can command the levers of power.
Trump won the 2024 election, but he and the bitter disorder he has brought us are highly unpopular. There are millions of Americans who won’t get fooled again.
The task is to blame Trump and his enablers for the ugly, dispiriting reality he has created. To pin Trump’s rampages, from the cruelty and greed of the Big Beautiful Bill to the hateful militarization of immigration policy, on the Republicans who have enabled him and his agenda.
We no longer live in the democratic America of 2024. MAGA is an antidemocratic movement. We have fewer freedoms, shrinking rule of law, and less security than before. The American regime in 2025 is competitive authoritarianism.
The Democratic Party supports democracy, in contrast to MAGA Republicans. It is the role of the opposition to oppose. Every day. As persistently and strategically as possible. With an eye toward winning elections in 2026 and 2028.
In a broader sense … today’s ruling is of a piece with this Court’s recent tendencies. “[R]ight when the Judiciary should be hunkering down to do all it can to preserve the law’s constraints,” the Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible. This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.
The judgment regarding the corruptly partisan Republican justices comprising the Supreme Court’s majority is hardly confined to this case. This majority, discarding the Constitution (along with the rule of law, separation of powers, history, precedents, and any semblance of judicial restraint) has supercharged the authoritarian rampage of Trump’s second term.
The MAGA Republican Party dominates all three branches of the federal government. Without that total domination, our democratic institutions would not be so highly vulnerable now. And note well: John Roberts, though dissenting in this instance, has paved the way for the wannabe strongman in the White House going back more than a decade — that is, even before Donald Trump rode down the golden escalator.
Thank you, Justice Jackson, for clearly and plainly expressing the depth of this court’s lawless corruption.
In the two decades Chief Justice John G. Roberts Jr. has led the Supreme Court, the justices have reshaped American elections not just by letting state lawmakers like those in Texas draw voting maps warped by politics, but also by gutting the Voting Rights Act of 1965 and amplifying the role of money in politics.
And, as Liptak explains, the court has signaled that there’s more to come — through more gutting of the VRA and further undermining the Fourteenth Amendment, which struck with a vengeance in Shelby County v. Holder in 2013. This and other decisions represent a power grab by the Republican majority on the high court to deny Article I authority of the most democratic branch of the federal government to enact legislation to protect voting rights. John Roberts has made a career out of the Republican Party’s opposition to the VRA — beginning with a stint as a 20-something attorney working for the Reagan Justice Department. A key battle he lost then, he reversed three decades later with the Shelby decision.
In 2019 in Rucho v. Common Cause the Republican majority struck down lower court rulings that restricted gerrymandered redistricting schemes and, further, forbade federal courts from consideration of constitutional violations in such cases. The chief justice, after a bit of handwringing about the unfairness of the schemes and dithering about why the courts couldn’t possibly adjudicate notions of fairness, sided with the schemers. Justice Elena Kagen was unmoved by the reasoning:
For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government. . . . Maybe the majority errs in these cases because it pays so little attention to the constitutional harms at their core. After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved.
The Republican majority on the Roberts Court, after trampling on voting rights, supercharged extreme gerrymandering — landing us in an undemocratic partisan battle, which will harm voters in every state that enters the fray.
The Republican justices — acting with more fidelity to the agenda of the Republican Party than to the plain text of the Constitution and the separation of powers that grants Congress the authority to legislate — are deciding cases based on political preferences or feelings or, as Leah Litman puts it, vibes. From Chapter 3 of her book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes:
Vibes don’t have to, and shouldn’t, cannibalize the law entirely. What has been happening over the last decade and change differs, at least in degree, from what was happening before. Voting rights decisions have become more nakedly partisan as more recent Republican appointees have more reliably reflected Republicans’ pro-minority-rule and anti-voting-rights agenda. There are no more John Paul Stevenses or David Souters who aren’t into nullifying voting rights protections because they think voting rights are too woke. They Rehnquist Court had its lawless moments, such as the remedy in Bush v. Gore, which ordered a state to cease and desist its efforts to accurately count ballots. Over time, more and more decisions have looked like that. Between misleading ellipses, recycled political talking points, letting feelings matter more than whether people’s votes are counted, and inventing prohibitions on voter discrimination into protections for voter discrimination (just to name a few), the Court has descended into no law, and just vibes.
Welcome to MAGA America courtesy of the Roberts Court. It began paving the way for the wannabe authoritarian in the White House even before Donald Trump rode down the golden escalator. And the Republican justices are still at it.
Update: A May 27 op-ed by Emily Keegin in the New York Times (“Trump’s Oval Office Is a Gilded Rococo Nightmare. Help.”) offers more substantive commentary, history, photographs, and even a six-second GIF from a movie featuring Trump’s apartment.
In 2017 the journalist Peter York called Mr. Trump’s aesthetic “dictator chic,” likening his New York penthouse to Muammar el-Qaddafi’s homes. Others have looked further back in history for an analogue. Many concluded not only that Mr. Trump’s style is the stuff of kings and despots but also that it’s French. On one level, they aren’t wrong. The decoration Mr. Trump has splattered across the Oval Office is inspired by European Baroque and Rococo of the 1600s and 1700s, when power was shown through ornate displays of grotesque abundance. Gold leaf moldings and large mirrors filled Baroque palace walls from Versailles to the Peterhof Palace. But in the early 1700s Rococo, an even gaudier style distinct for its asymmetry, swirling tendrils and gilded seashells, was born. Often criticized for being purely decorative and intellectually vacuous, it would become a perfect visual metaphor for the European royal courts of the 18th century: unserious people draped in gold baubles and ruffled pastels.
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 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
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).
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.
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.*
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 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.
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.
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.
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.
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.”
Stanford political scientist Adam Bonica notes (in “The Supreme Court Is at War With Its Own Judiciary“)that since May, federal district courts have ruled against Trump administration 94% of the time, while the Supreme Court has sided with the Trump administration 94% of the time.
He describes the pattern in which district court judges gather evidence firsthand and rule that the administration has acted illegally, the administration appeals to the Supreme Court, and the high court’s majority sides with the administration in unsigned emergency orders.
Trump’s DOJ, which has repeatedly defied judges, has been contemptuous of the authority of the courts to provide judicial oversight. Trump has defamed judges; his allies have doxed them, issued death threats, and submitted impeachment resolutions.
Bonica concludes:
The conservative majority knows exactly what it’s doing. These same justices would never have allowed a Democratic administration to take similar actions, like abolishing federal agencies by executive order or federalizing national guards without state approval and deploying the military against peaceful protesters. Yet when Trump bulldozes through constitutional limits, the Court waves him on. We are witnessing something without precedent: a Supreme Court that appears to be at war with the federal judiciary’s core constitutional function. It has chosen to bless the administration’s actions, and in doing so, systematically dismantles the authority of any court that stands in its way. The courts can’t protect the Constitution because the Supreme Court won’t let them. The Supreme Court has chosen a side, and it isn’t the rule of law.
Trump’s Attorney General has noticed. When asked by Senator Patty Murray whether the administration ought to follow court orders, Pam Bondi responded:
We will follow court orders, Senator. We will follow court orders. The problem arises in the district courts. All these district courts throughout the country are trying our hands. And here’s how we will follow them — when we get to the United States Supreme Court, we’re winning.
MURRAY: Do you agree that this administration should follow court orders?BONDI: We will follow court orders. The problem arises in the district courts. All these district courts throughout the country are tying our hands. And here's how we will follow them — when we get to SCOTUS, we're winning
This is consistent with the Project 2025 strategy. 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.
