The Roberts Court has demonstrated, systematically over many years, a corrupt devotion to advancing the agenda of the contemporary Republican Party, while disadvantaging the Democratic Party and its constituents. As I have argued, a string of decisions related to campaign finance, voting rights, and gerrymandering have served to make it tougher for Democrats to win elections.
Moreover, in a playbook employed by Viktor Orbán, the high court has proscribed public policies and practices favored by Democrats. In case after case, the Republican majority has precluded the give and take of politics — when Democrats win elections and put their favored public policies in place — by undermining the ability of Congress to work its will.
Jan-Werner Müller, in his book What Is Populism?, describes this authoritarian scenario:
The Hungarian government . . . essentially designed what a former judge on the German constitutional court, Dieter Grimm, has called an “exclusive constitution,” or what one might also term a partisan constitution: the constitution sets a number of highly specific policy preferences in stone, when debate about such preferences would have been the stuff of day-to-day political struggle in non-populist democracies.
That’s exactly the pattern followed by the Republican-appointed justices — through their rulings from the bench — who comprise the court’s majority. And when the two parties are most sharply at odds, it is partisanship — not adherence to originalism, or textualism, or strict constructionism, or any other feigned judicial-ism — that carries the day.
In July 2024 the Roberts Court, in a decision untethered from — and in defiance of — the United States Constitution, careened off the rails in Trump v. United States. With this ruling, the Republican majority decreed one man exempt from the rule of law. As Justice Sonia Sotomayer observed in her dissent: “In every use of official power, the President is now a king above the law.”
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.
SCOTUS can let Trump break the law
Cue Josh Marshall, who points to “the conservative legal movement, embodied in the Federalist Society.” Yes, this fraudulent, results-driven doctrine, conjured up to advance the interests of the Republican Party, is antithetical to the Constitution as written and as envisaged by the founders.
I’ve taken the justices who comprise the Republican majority to task. Marshall focuses on the doctrines, weaved out of whole cloth by the Federalist Society, to give cover to this partisan majority.
The Supreme Court might allow Trump to break the law. But that will be what it is – allowing him to break the law. We will collectively have to grapple with that reality. But it will still be illegal. The Court can say up is down but up will still be up.
. . .
Trump is hungry to walk through this door of lawless autocracy. But it is the conservative legal movement, embodied in the Federalist Society, organized by Leonard Leo and others who opened the door. They manufactured the fraudulent idea that presidents cannot be constrained by the law. They imported it from abroad, from the degenerate ideologues of autocracy. They did this. They created the current moment in which a renegade President can simply start chainsawing through the legal fabric and do anything he wants and we, the citizens of the country, must wait in anxious expectation to learn which if any of the laws turn out to be real. That’s not how the rule of law works. It’s not a game of Magic Eight Ball, built by design on inherent suspense and uncertainty. It’s nature is its clarity and fixity, especially during arduous times of tumult and fear.
Yes, I am fully versed on the theory of purported unitary executive power. It’s a fraud, literally a foreign imposition.
Marshall continues:
We can talk endlessly about whether we’re still in a democracy or whether Trump wants to be or is acting like a dictator. We can debate words ‘fascism’ that were unknown before a century ago. But what we are seeing right now is the definition of tyranny, a half-archaic concept the founders of the American Republic were very familiar with. Trump’s rule is both lawless and arbitrary. He has taken the bundle of powers the constitution provides him to govern and defend the constitution and turned them to an entirely different and corrupt purpose: using them as weapons to attack the people and institutions he deems his enemies.
. . .
The President is no King; he is subject to the law. And yet here we are. And it is the fraudulent doctrine of unitary executive authority which is walking before him like a statutory bushwhacker, clearing a path for him through every law and restraint. As I wrote above, this doctrine is based on theories and philosophical principles totally unknown to the architects of the constitution.
I concur.