Federal courts have been our last line of defense against the lawlessness of the Trump administration. But the top federal court, the U.S. Supreme Court, has been disagreeing with the lower courts and enabling Trump in his lawlessness.
Among Trump’s illegal actions is an executive order declaring an end to birthright citizenship. However, the 14th Amendment to the Constitution clearly states that a person born in the United States is a U, S, citizen. Thus, a coalition of 20 state Attorneys General, all Democrats, brought lawsuits against Trump and the Executive Order.
Last Friday, the conservative majority of the Court voted 6 to 3 to allow Mr. Trump’s executive order seeking to end birthright citizenship to take effect in some parts of the country – even though every court that has looked at the directive has ruled it unconstitutional.
The diminishing of judicial authority as a check against excesses of presidential power carries implications far beyond the issue of citizenship. The Supreme Court is effectively tying the hands of lower-court judges at a time when these courts are trying to respond to a barrage of overreaches of the Trump administration.
The decision by the Supreme Court’s conservative majority comes as other constraints on Mr. Trump’s power have also eroded. The Trump administration has steamrolled internal executive branch checks, including firing inspectors general and sidelining the Justice Department’s Office of Legal Counsel, which traditionally serve as guardrails for proposed policies and executive orders.
And Congress, under the control of Mr. Trump’s fellow Republicans, has done little to defend its constitutional role against his encroachments. This includes unilaterally dismantling agencies that Congress had mandated to exist by law, firing civil servants in defiance of statutory limits, and refusing to spend funds that lawmakers had authorized and appropriated.
We should not be surprised that the Supreme Court is, in effect, assisting Trump this year after its actions last year, most notably the immunity decision. Trump’s lawyers filed a case with the Court, ruling that a president could not be prosecuted for actions taken as part of their official duties. In other words, if he was acting in his role as president, nothing he did could be prosecuted. Unbelievable!
And then there is the fast tracking of the disqualification case and the slow walking of the immunity case. In September 2023, Colorado voters filed a lawsuit asserting that Trump was ineligible to participate in the upcoming presidential election because the 14th Amendment barred individuals who had engaged in insurrection from holding federal office. The Colorado Supreme Court agreed with those plaintiffs, and Trump appealed to the U.S. Supreme Court in January 2024. The Supreme Court ruled in favor of Trump in less than a month, a swift pace, in time for Trump to appear on ballots in the Colorado primary.
On the other hand, the slow progress of the immunity case and its eventual outcome had the effect of ensuring that Trump would be on the ballot in November and that the pending criminal case against him, brought by Jack Smith, would not be concluded by the election. Notably, the ruling giving Trump immunity made it much harder to prosecute. These actions certainly helped Trump.
When I expressed surprise that the Court would stoop so low as to contort legal arguments to Trump’s position, considering Trump’s inappropriate and lawless behavior, I was reminded that they are politicians. And that is the way I think of them – politicians in the pejorative sense of the word,
Conservative members of the Court tend to be members of the Federalist Society, an American conservative and libertarian legal organization. The Federalist Society’s efforts have contributed to a shift in the Supreme Court’s ideological balance, with a growing number of justices appointed by Republican presidents taking increasingly conservative positions. In essence, the Federalist Society acts as a pipeline for conservative legal talent and ideas, significantly impacting the Supreme Court’s composition and jurisprudence.
Of the current nine members of the Supreme Court of the United States, at least five are current or former members of the organization – Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, Samuel Alito, and Amy Coney Barrett. As young lawyers aiming for significant legal careers, especially those in the judiciary, they aligned themselves with the Federalist Society’s political positions. Thus, they are politicians, and we should regard them as such.
