Will the Supreme Court Face Down Trump or Flinch?
For John Roberts and the other non-MAGA SCOTUS conservatives, the hour of trial draws near.
WHAT WILL WE SAY about the Supreme Court when the storm has passed? That it was strong? That it stood firm against a rogue president? If, when the crisis comes, the justices make Donald Trump blink, then eventually, we may come to pair him with Andrew Jackson—two colorful leaders in the colorful history of our nation—as the nation moves on. But what if, looking back, we see the Court was weak? What if the justices confine themselves to milquetoast opinions? What if they content themselves with calling ordinary constitutional footfaults as Trump assaults the constitutional order itself? The justices may be remembered for meekly standing by, pointing at parchment barriers as a strongman tore them to shreds.
At the center of the Court sit three pivotal jurists: Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. When they act together, they are the Court’s deciding force. Although Trump appointed two of them (Kavanaugh and Barrett), all three are genteel conservatives with no deep attachment to Trump or his movement. Given their druthers, they would spend their time doing conservative legal stuff—construing statutes narrowly here, protecting Christian convictions there—while ignoring Trump and Trumpism. But history, it would seem, has other plans for them. The Court’s three liberals (Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson) will stand tall against Trump. The Court’s three ultra-conservatives (Clarence Thomas, Samuel Alito, Neil Gorsuch) will likely seek to accommodate him. Everything hangs on the three in the middle.
Roberts, Kavanaugh, and Barrett came to the Supreme Court in the name of conservative constitutional restoration. They will now be called upon to engage in emergency constitutional preservation. These are not the same thing, and for this trio, the transition—if they heed the call—will be a profoundly uncomfortable one. They will have to set aside their sense of restraint, abandon their self-image as bloodless, neutral arbiters, and, if necessary, even betray the conservative legal movement that shaped them. They are headed for a confrontation with Trump—a confrontation they must win.
START WITH THE PRESIDENT’S REMOVAL POWER. For as long as modern conservative legal thought has existed, there has been a campaign to overturn Humphrey’s Executor v. United States (1935), the New Deal–era ruling that allows Congress to limit the president’s ability to remove senior officials—what the Constitution refers to as “officers.” The decision, which sustained a provision that insulated the five leaders of the Federal Trade Commission from being removed without cause, became the foundation for so-called independent agencies—the SEC, FDIC, FEC, CFTC, EPA, and so on.
Humphrey’s Executor is not a strong decision. According to Robert H. Jackson, Roosevelt’s third attorney general and eighth Supreme Court justice, FDR believed the justices’ ruling was an effort to rebuke him (modern legal scholars tend to agree). The Court reasoned that the FTC is not an executive agency but a “quasi-legislative” and “quasi-judicial” one. The Constitution does not, however, recognize “quasi” branches of government. As Chief Justice Roberts observes, Humphrey’s Executor “has not withstood the test of time.”
A week into his second term, Trump fired Gwynne Wilcox, a Democratic member of the National Labor Relations Board. She sued, setting up the test case the Trump administration clearly wanted. The Roberts Court has been steadily chipping away at removal protections. Whether through Wilcox’s case or another one, Roberts, Kavanaugh, and Barrett will soon have the opportunity to complete a great conservative legal quest: overturn Humphrey’s Executor altogether and hand the president the power to fire any officer at will.
By itself, this shift would not be all that scary. The president already appoints agency heads, who tend faithfully to implement his agenda. The new chairs of the FTC and the FCC have happily made clear that, removal protection or no, they intend to display no independence whatsoever. True, if the Court takes literally the Constitution’s command that all “executive Power” be “vested” in the president, that might free Trump to eject every last Democratic agency commissioner. But while that would be bad, it would not be apocalyptic. (It’s not like anyone from the other party is around to dissent when the attorney general files a lawsuit.)
But Trump is not trying simply to overturn Humphrey’s Executor—and he is certainly not making a stand for the Constitution and its separation of powers. On the contrary, he is systematically attacking the constitutional order.
He has claimed a sweeping power to withhold lawfully appropriated funds, in defiance of Congress’s unambiguous constitutional power of the purse.
He has declared statutes void by fiat (that’s why you can still download TikTok), literally replacing law with lawlessness.
He has twisted other rules beyond recognition—asserting, for example, that the Fourteenth Amendment’s pledge that “all persons born” in this country are citizens means the opposite of what it says.
He has corrupted law enforcement by pardoning insurrectionists, firing lawyers who (rightly) investigated him, imposing loyalty tests on new federal agents, and dropping charges in exchange for political favors.
He has placed the FBI in the hands of a pair of podcasting cranks.
Far from wanting merely to remove unwanted agency heads, he plans to purge the civil service, replacing competent government employees with committed ideological allies.
Worst of all, Trump might start ignoring court orders. He has so far maintained a degree of strategic ambiguity on this front, but a showdown looms. His closest aides are challenging the judiciary’s authority and calling for judicial impeachments. And Trump himself has declared that “He who saves his Country does not violate any Law.” In the face of this bone-chilling line, no promises from Trump’s lawyers about following court orders can be taken seriously.1
When a branch of government goes rogue, pushing its powers beyond their constitutional limits, how should the rest of the system respond? In his memorable dissent in Morrison v. Olson (1988)—a case about the removal power, no less—Justice Antonin Scalia acknowledged that a regime “of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.” But, he assured us, there are two key checks. “First, retaliation by one of the other branch’s use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws.” And “second, and ultimately, there is the political check that the people will replace those in the political branches . . . who are guilty of abuse.”
When Scalia wrote them, these words were meant to convince the reader that a broad removal power was nothing to fear. Today, they serve as unsettling proof that things are falling apart. Trump is abusing executive power with abandon (including by “willfully fail[ing] to enforce the laws”); but on which of the two checks are we to rely? Congress is supine: It confirms Trump’s preposterously unqualified nominees, refuses to defend its spending power, and (experience grimly shows) will never succeed at impeachment. It has abandoned its constitutional duty to stand as a coequal branch of government. As for the voters, they saw Trump attempt to steal an election, disrupt the peaceful transfer of power, and call for “termination” of the Constitution, and then they returned him to office. They didn’t check the abuse of power; they validated it.
If the executive breaks through constitutional barriers, and if both Congress and the electorate refuse to act, is it enough for the Supreme Court to carry on as usual? Overturn Humphrey’s Executor, come what may? Or are justices who ignore a crisis guilty of feeding it?
Consider the disaster that is Trump v. United States (2024). Writing for the Court, Chief Justice Roberts asked whether presidents, as a general matter, need broad immunity from prosecution to function effectively. “Unlike the political branches and the public at large,” he announced, “we cannot afford to fixate exclusively, or even primarily, on present exigencies.” “Our perspective,” he wrote, “must be more farsighted.” Viewing matters from this Olympian height, Roberts thought it a fitting moment to praise presidential vigor: “The system of separated powers designed by the Framers has always demanded an energetic, independent Executive.” Accordingly, Trump v. United States grants presidents expansive immunity from criminal prosecution for official acts.
In ordinary times, this ruling would have been debatable. We need to keep the imperial presidency—an expansion of executive power that predates Trump—accountable. (In Federalist 51, Madison wrung his hands about “the weight of the legislative authority” and “the weakness of the executive,” worries suited to his era but alien to our own.) On the other hand, Roberts was not wrong to raise the specter of an executive branch that “cannibalizes itself” as, in an escalating “cycle of factional strife,” each new president prosecutes his predecessor.
But ordinary times these are not. The real issue in the case was, of course, whether a very specific former president, one Donald J. Trump, could be prosecuted for trying to steal an election and, when that didn’t work, inciting a riot and pursuing a coup. Roberts was utterly blind—proudly blind—to the fact that we have entered extraordinary times. The president must be able, Roberts insisted, to “boldly and fearlessly carry out his duties.” What an amazing thing to say, in the context it was said. By delaying, and then derailing, Trump’s trial for his role in the January 6th attack, Roberts ensured that Trump faced no reckoning before the next election. And so Trump is back, now armed with near-total immunity and a greater threat to the Constitution than ever.
Mr. Chief Justice, is this man acting “boldly” and “fearlessly” enough for you?
THE ROMAN REPUBLIC was not destroyed in a day. Over time, small farmers were displaced by vast estates worked by slaves. (You might say the “middle class” was “hollowed out” by a form of “globalization.”) This and other forms of elite self-interestedness created openings for populist demagogues. Ambitious men relied on celebrity, rather than service, to rise. Polarization increased, and elections grew violent. Institutional norms broke down. Although the Senate remained and patriotic rhetoric persisted, politics became a raw struggle for power. Checks and balances failed, strongmen prevailed, and the republic collapsed.
The parallels with our situation don’t need spelling out. The justices of the Supreme Court would do well to start meditating a little less on the proclamations of Madison and Hamilton, and a little more on the provocations of the Gracchi and Pompey. Trump is not Lincoln, wielding great power to guide the nation. He is Sulla, proscribing his enemies.
Large forces are at play. The Court cannot save the republic by itself. But it can refuse to go along with its destruction. When right-wing commentators compare us to the late Roman Republic, their point is that Trump is Caesar, the would-be dictator, who must cross the Rubicon and wage civil war. Roberts, Kavanaugh, and Barrett, the Court’s guiding triumvirate, must recognize the moment. Now is not the time to overturn Humphrey’s Executor. Do not feed a despotic beast new paeans to bold and fearless leadership. Now is the time to hand Trump no new power, to reject his lawbreaking at every turn, and to call him the constitutional menace he is.
Roberts, Kavanaugh, and Barrett need to speak up. This is not some academic debate about the original meaning of the Take Care clause. It is a brewing crisis over the fate of American liberal democracy. The time has come to declare, in no uncertain terms, that Trump is a clear and present danger to the republic. Every conservative lawyer knows Justice Scalia’s famous line: This wolf comes as a wolf.
In a recent request for an emergency stay filed at the Supreme Court, Acting Solicitor General Sarah Harris wrote: “The Executive Branch takes seriously its constitutional duty to comply with the orders of Article III courts.” A talented lawyer, Harris no doubt knows that she is throwing a hostage to fortune.
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