The Hundred-Year Court and the Flash-in-the-Pan Presidency
The Supreme Court is mostly giving the Trump administration what it wants—with interesting exceptions.
At about this time last year, the Roberts Court seemed like an arm of the Trump administration. On its so-called shadow docket—where it considers emergency applications without a full briefing or a hearing—the Supreme Court gave the White House victory after early victory. Over the past year, however, the mood has changed: The Court handed the president major losses on two of his signature policy initiatives, birthright citizenship and global tariffs.
Seeing these decisions, some might hope that the Court is taking a moderate turn or perhaps forging a sense of true independence. But that is not what is happening here. Instead, the Court’s future dealings with the Donald Trump presidency will likely be guided by three general rules: First, keep focus on the constitutional project that Chief Justice John Roberts has been coaxing into being since he joined the Court—one that will transform the First Amendment, eviscerate the equal-protection clause, and recalibrate the Constitution’s balance of powers—and green-light presidential initiatives that chime with this project. Second, because this project aims at deep constitutional change, consider breaking from ideological stereotypes when a case involves a mere statute, which can always be reworked by Congress. Finally, beware of presidential frolics that could leave the justices politically exposed when things go sideways—especially if traditional Republican elites would be among the unhappy constituencies.
Roberts’s project of constitutional change began long before Trump came into office. Take the transformation of the First Amendment: Just five years after his confirmation to the chief justiceship, Roberts wrote the Citizens United v. FEC decision, interpreting the First Amendment to invalidate limits on corporate election spending. This term, the Court pushed further, allowing the national parties to act as vehicles for big-dollar spending. In National Republican Senatorial Committee v. FEC, the Court invalidated long-standing laws limiting parties’ spending in coordination with candidates. This undermines insurgent candidates’ ability to work around parties’ national leadership and hands the full-coffered Republican Party another leg up in this year’s midterms. In the longer run, when combined with the Court’s recent blessing of gerrymandering, the NRSC decision will further erode meaningful democratic processes: Legislative districts will be drawn by party elites who are closely aligned with wealthy donors, and voters will have less and less input in the process.
Another strand of the justices’ effort to reinterpret the First Amendment has not yet reached its apogee, having gotten derailed last term by an unexpected recusal. Since 2012, the Roberts Court has expanded churches’ immunity from ordinary laws under the First Amendment’s free-exercise clause. The Court has also stripped away constitutional limitations on state support for churches. Put these together, and the country is dramatically expanding the right of ecclesiastical bodies to ignore state law while demanding state funds.
Last year, religious litigants in Oklahoma challenged the state’s refusal to fund religious charter schools. The Court split 4–4, leaving in place the lower court’s ruling that said the state was in the right; Justice Amy Coney Barrett had recused herself from the case. Should another case present a similar question, and should all nine justices vote on it, the outcome may remake the relationship between Church and state in America.
As with the First Amendment’s free-speech clause, the Fourteenth Amendment’s equal-protection clause is being repurposed to do the opposite of what it was intended. This shift also began long before Trump’s ascension. In 2007, in Parents Involved in Community Schools v. Seattle School District No. 1, the Roberts Court stopped municipalities from accounting for residential segregation when assigning children to schools in a district. Roberts justified this embrace of de facto balkanization by equating equal protection with color blindness. Even a sliver of recognition that race matters to people’s life chances, he ruled, flouted the Constitution.
This term, the Court pulled that move again, reading the Constitution’s equality guarantee as a requirement of a “colorblind” approach. As a result, the 1965 Voting Rights Act, the most important enabler of minorities’ ballot access in a long history of racial disenfranchisement, has been essentially neutered. The decision frees state legislators to eliminate majority-Black districts, which Alabama immediately did. The decision also removes one of the last frictions on partisan gerrymandering—and so it abets the power of parties to select their electorates, rather than vice versa.
But the Court has not been consistent in its commitment to a colorblind legal system. In one case, it blessed race-based immigration-enforcement stops, in a concurrence by Justice Brett Kavanaugh that cited the supposedly “common sense” idea that darker-skinned people are more likely to be undocumented. In another, when Haitian plaintiffs pointed to explicitly racist justifications for the termination of their temporary protected status, the Court downplayed the evidence of color consciousness, instead trimming constitutional equality protections to a fruitless nub. Meanwhile, plaintiffs challenging state efforts to mitigate race discrimination have a glide path to victory.
Finally, there is the unitary-executive theory. In 2010, the same year as Citizens United, the Roberts Court for the first time applied the idea of the unitary executive by limiting Congress from installing layers of bureaucracy between the president and federal officers. This term, it gave the president near-absolute power to fire officers. As a result, Congress can no longer create offices to durably pursue statutory goals regardless of who’s in the Oval Office.
The Roberts Court’s constitutional vision broadly aligns with the president’s preferences. Hence, the White House won on constitutional questions this year when it aligned with the Court’s long-standing agenda. It lost—as in the birthright-citizenship case—only where it had tried a dramatic constitutional innovation that is not yet part of the Court’s vision.
By contrast, in some cases that turn on the reading of a federal statute as opposed to the Constitution, the Court shows more ideological flexibility—the second general rule. In some, it even rules against the president. As a political matter, some such cases—involving tariffs, immigration, and mail-in-ballots—seem high stakes. But as a legal matter, they have a smaller footprint because legislators can always “overrule” the Court by enacting a new statute. And if a president loses on one statutory theory, he can often turn to different laws to achieve the same end—as Trump did on tariffs.
Other statutory losses for the White House illustrate the third general rule: The administration loses when it asks the justices to risk taking the blame for a policy that is off-piste for the Court’s constitutional agenda, and that invites potential political heat. Hence the Court’s surprising ruling allowing some mail-in ballots to be counted after Election Day. Here, a five-justice majority read the statute at issue faithfully but also eliminated a potential font of postelection litigation come November. It thus dodged the risk of having to openly pick an election winner as it did in Bush v. Gore.
Likewise, the White House lost when its constitutional demands threatened to place the Court at odds with the traditional conservative base of business elites. This was why the Court held that the unitary-executive theory did not give the president control of the Fed, even though few legal reasons exist to carve out an exception for monetary policy. As Kavanaugh hinted, any risk of the Court shouldering the blame for the “political upheaval” and “turmoil in the U.S. and world economies” from the president’s monetary whims was a demand too far.
The lesson for the White House from this term is not that the Court is suddenly an adversary. It is that the justices have little patience for impulsive, erratic swerves by a president who will be gone in three years, especially when accommodating his whims undermines their longer-term constitutional vision.
For the American public, the lesson is more ambiguous. The Court’s project cannot be described as an originalist one. It would take bottomless credulity to justify with history a First Amendment right to buy politicians, an equal-protection clause that mainly benefits white people, or an executive power to summarily dismiss bureaucrats who follow the law but defy the president.
Neither is the Court’s vision a democratic one, even if it comes wrapped in the bluster of free speech and evenhandedness. Instead, it is one in which elections are hollow exercises, thanks to gerrymandering and the political power of money; racial minorities are relegated to the economic and political margins; and high-dollar donors jockey to urge the White House to ignore statutes that Congress has enacted. This is a project intended to protect those in power—especially those whom the justices agree with politically.
It is the fate of this project, and not just the flash-in-the-pan cruelties of the second Trump administration, that will shape the coming century, and so determine whether the notion of an American democracy is a living fact or an object of wistful nostalgia.