SIX MEMBERS OF THE SUPREME COURT do not seem to understand what any high school student knows about the importance of checks and balances to protecting American democracy. Why not?
Widely used textbooks and lesson plans, popular encyclopedias, and even the federal government’s own websites all stress the Framers’ wise decision to diffuse power among three branches of government, creating a system in which each branch can block or challenge another’s assertion of power.
This power of each branch to check the ambitions of the others is not merely a theoretical power that should rest limp in the hands of feckless officials. It is a constitutional duty the Framers established to guard against excessive aggregations of power.
In case after case, however, the six Republican-appointed members of the Supreme Court1 have flouted this crucial principle, abdicating their constitutional obligation to restrain presidential arrogations of unauthorized power. Instead of operating as a check against an overly aggressive presidency, the majority has repeatedly written blank checks allowing President Trump to insert any amount of power that he chooses to fill in.
In a stream of recent decisions, including many conducted on the so-called shadow docket without the benefits of full litigation, the majority has summarily unleashed the Trump administration from constraints that scores of federal judges—many of them appointed by Republican presidents, including Trump himself—have deemed constitutionally necessary.
At the end of its most recent term, the six-justice majority stayed injunctions that three different federal judges had issued enjoining President Trump’s executive order purporting to nullify “birthright citizenship,” despite the explicit declaration in the Fourteenth Amendment that “all persons born in the United States” are American citizens. The majority could not quite bring themselves to read this provision out of the Constitution, so they ruled that the lower courts should not use broad injunctions to interfere with the president’s policies.
The majority complained that, when a federal court “enters a universal injunction against the Government,” it improperly “intrudes” on executive branch prerogatives and “prevents the Government from enforcing its policies against nonparties,” even if those policies are unconstitutional. It is hard to imagine a more stunning abdication of the federal judiciary’s obligation to keep an anti-constitutional executive branch in check.
In July, without even bothering to explain its reasons, the justices simply indulged President Trump’s desire to rule by decree, without the niceties of obtaining congressional approval or support. This unsigned decision stayed lower-court rulings that had blocked implementation of his executive order calling for massive restructuring of the government, closing down various operations chartered by Congress, and firing tens of thousands of public servants.2
In another enhancement of raw presidential power at the expense of legislative authority, the six-justice conservative majority summarily granted a stay allowing the president to push forward in dismantling the Department of Education. Created by Congress, the cabinet-level department is tasked with performing vital functions that are now left in limbo.
Three times in the past few months, the majority knowingly and summarily disregarded a major Supreme Court precedent that had constrained another president, Franklin D. Roosevelt, when he attempted to unravel the federal government’s system of bipartisan regulatory agencies. In that 1935 precedent, Humphrey’s Executor v. United States, the Supreme Court concluded unanimously that presidential power does not extend to firing, for mere policy differences, officials serving in independent agencies such as the Federal Trade Commission. Back then, the Court found that Congress had arranged for commissioners to be removed during their multi-year terms only for misconduct or similar cause.
Nevertheless, the current majority continued to indulge President Trump’s most extravagant assertions of presidential power, allowing him to sack the Democratic members of various regulatory agencies solely for partisan reasons. In these latest cases, the president’s targets were the Democratic appointees on the National Labor Relations Board, the Merit System Protection Board, the Consumer Product Safety Commission, and the Federal Trade Commission. As Justice Kagan recognized in dissenting in the NLRB/MSPB case, Congress had provided for federal regulators “to serve their full terms, protected from a President’s desire to substitute his political allies.” But when the majority of the current Court has to choose between Congress and President Trump, the president invariably wins.
Another blank check came last month when, once again, the majority summarily suspended two lower courts’ rulings that barred the government from canceling commitments for $800 million in grants for ongoing medical research. As Justice Jackson noted in her dissent, the majority’s expedited action to allow President Trump to cancel any grants that might violate the administration’s anti-DEI policies obstructed “potentially life-saving scientific advancements.”
After cataloguing the majority’s pattern of intervening at the earliest possible moment to give the Trump administration free rein, Justice Jackson observed that, “unfortunately,” this action was simply the “newest entry in the Court’s quest to make way for the Executive Branch.”
SO WHAT EXPLAINS this abject deference to President Trump’s whims and wishes? There are several theories on offer.
Some court-watchers have argued over the years that the conservative justices are motivated by a desire for conservative policy outcomes. (The mirror critique has also long been made about the liberal justices: that, notwithstanding their legal reasoning, their real desire is to see liberal policy outcomes.) But that argument, whatever its merits in the past, does not match today’s circumstances, as Trump’s court victories largely relate to policies that are radical rather than recognizably conservative.
A second theory is that the Court, guided by Chief Justice John Roberts, is keeping its powder dry—choosing to minimize clashes with Trump now so that it will retain its institutional legitimacy in case of a later, dire showdown. But there is zero evidence for this theory; it amounts to wishful thinking, doesn’t make logical sense, and becomes less plausible by the day.
I’m persuaded by a third theory often aired: that several of the Republican-appointed justices have embraced the notion of the “unitary executive,” a strain of constitutional interpretation that holds, in essence, that all power in the executive branch is derived from the presidency, that all officers in that branch are merely exercising power on behalf of the president, and that no parts of the executive branch ought to be considered independent of the president or beyond his power to order or fire. This theory, popular among members of the Federalist Society, was spelled out in the Reagan era (although it has earlier antecedents). The justices who served in the executive branch under Republican presidents (Roberts in the Reagan White House, Clarence Thomas elsewhere in the Reagan administration, and Brett Kavanaugh in the George W. Bush White House) seem especially partial to it.
But even the unitary executive theory doesn’t fully capture the radicalism of where this Court has gone. The vision of the presidency spelled out by Chief Justice Roberts on behalf of the six justices in last year’s Trump v. U.S. is like the unitary executive theory but on steroids. That opinion holds that President Trump (and, indeed, any president) enjoys constitutional immunity to commit federal felonies, making him exempt from accountability in federal courts for violating criminal laws enacted by Congress. (In Senate testimony last year, I explained why that decision is patently wrong, defies both the text of the Constitution and our constitutional history, and is profoundly dangerous.)
When Roberts, in that ruling, wrote “the President is a branch of government” unto himself, the chief justice may have thought he was merely spelling out a Reagan-era vision of a stronger presidency and a unitary executive. But, as Harvard law professor Jack Goldsmith argued earlier this year, Trump v. U.S. is not just a “presidential immunity shield” but also “an executive branch sword”—an aggressive interpretation of the role of the president. With that ruling and the Court’s string of decisions granting Trump an unlimited bank account of power on which to draw, the Court set the stage not for a strong and stable presidency but for chaos in the executive branch, and a reckless and anti-constitutional presidency wielding power without fear of checks and balances. If the Court doesn’t change course, and soon, history will judge these six justices harshly.
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