This Isn’t Trump’s Supreme Court
· The Atlantic
By striking down President Trump’s tariffs, the Supreme Court has once again shown that it is no partisan instrument of Republican power. Chief Justice John Roberts, who wrote the decision, has a much more ambitious goal in mind.
A common myth holds that the current court is a 6–3 conservative institution that protects Trump and the GOP—that it is “enabling” him and giving him a “free pass” or a “blank check.” But basic accounting shows that this isn’t true. Last term, for instance, only 10 decisions, or 15 percent of decided cases, were 6–3. The Court’s liberal justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—were the sole dissenting votes in six of those cases. The Court’s most conservative justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—were the sole dissenting votes in the other four.
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Among both 5–4 and 6–3 cases, the Court’s liberal justices dissented together 15 percent of the time. Conservatives likewise dissented together in 5–4 and 6–3 cases 15 percent of the time. Most of those closely divided cases—70 percent—were a mixed bag of conservatives and liberals on both sides. And almost half of the Court’s cases were unanimous.
[Ilya Somin: How the Supreme Court spared America]
Of course, this Court has decided plenty of cases, including high-profile ones such as those overturning Roe v. Wade and affirmative action in higher education, with the six conservatives siding against the three liberals. But consider that last June, each liberal justice wrote a unanimous opinion in an ideologically charged dispute—including cases involving religious liberty, gun-manufacturer liability, and reverse discrimination. The decisions had all been closely watched during the term as “big cases.” But once they were decided unanimously, with the decisions written by the Court’s liberals, they weren’t discussed as so “big” anymore.
The Court’s six justices appointed by Republican presidents don’t vote in lockstep. Neil Gorsuch and Brett Kavanaugh—both Trump appointees—voted together in closely divided cases only half the time last term. In the term before that, Sotomayor, Kagan, and Jackson were all more likely than Alito and Thomas to be in the majority. It’s hard to argue that Republicans control the Court when Jackson is winning more than Thomas.
Plenty of people nevertheless argue that this Court is in the bag for Trump. But in his first term, Trump had the lowest success rate at the Supreme Court of any president in at least a century. In fact, the first Trump administration was the first modern presidential administration more likely to lose than win before the Supreme Court, including in cases involving immigration and the census. Not to mention that the Court unanimously rejected Trump’s attempt to change the outcome of the 2020 election. Perhaps the Court’s pushback against Trump simply reflects that he acts unlawfully more than past presidents did, but the narrative that he always wins doesn’t hold up. Although he fared well on the Court’s interim docket over the summer, in his second term, he has not only lost on the tariffs case; the Court also blocked him from federalizing the National Guard in Chicago and using the Alien Enemies Act to deport people without due process.
Why does Trump keep losing at the Court? Because the larger project the Roberts Court seems to have undertaken is reining in the power of the presidency and making the president more politically accountable. Trump’s tariffs and Joe Biden’s student-loan-debt-forgiveness cases were both about whether a president could act without clear congressional authorization. The 2024 Loper Bright decision, which held that executive-branch agencies no longer get to define the scope of their own authority, also stripped power from the executive branch. So did the vaccine-mandate case (Biden) in 2022 and the tax-records case (Trump) in 2020. This is a through line across administrations.
At the same time, the Court is putting the president more fully in charge of his branch of government. In that sense, Trump is winning. In Trump v. Slaughter, which involves the question of whether presidents can fire members of so-called independent agencies, the Court appears poised to let him have more direct control over those agencies and their personnel to execute his preferred policies. But that’s only after the justices, in Loper Bright, took power away from those agencies and handed it back to Congress, where it belonged. Trump will be a more powerful president over a weaker presidency.
The Court’s 2024 criminal-immunity decision might seem to run counter to Roberts’s project—all the more so because of how brazenly Trump is currently abusing the power of his office. But it does fit. The Court held that a president exercising the powers of his office is presumptively immune from criminal prosecution unless the prosecution wouldn’t hurt a future president’s ability to do his job. In the meantime, it’s up to Congress to impeach a scofflaw president. Criminal prosecution, no matter how deserved it might seem, can’t be a substitute for political action by Congress—just as executive orders, no matter how desirable, can’t be a substitute for legislative action by Congress.
Too often, casual Court watchers think that the Supreme Court is deciding whether policy X is good policy. But in reality, the Court is often tasked only with deciding who gets to decide. The Supreme Court didn’t decide in West Virginia v. EPA and Garland v. Cargill whether banning carbon emissions (under Biden) or banning bump stocks (under Trump), respectively, was constitutional. It decided who has the power to ban carbon emissions or bump stocks. The answer in both cases was Congress, not the executive branch.
[Idrees Kahloon: The Supreme Court isn’t a rubber stamp]
In preventing presidents from both parties from digging up decades-old statutes with vague language as the basis to expand their own power, as Trump tried to do in the tariffs case, the Court is forcing Congress to assert itself. Democrats in the past have criticized these kinds of decisions, arguing that the experts in executive-branch agencies are better positioned to address emerging crises than Congress is. But in Trump’s second term, they might now be realizing the value in limiting the power of presidents. After all, this is the logic by which the Court has stopped Trump from implementing worldwide tariffs at a whim and deploying the National Guard into cities. I predict that the justices will rule against Trump for the same reason in the upcoming birthright-citizenship case.
As Gorsuch wrote in his concurrence on the tariffs case:
Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day.
This is the project the Court has been undertaking. It is not to help one political party. It is to shrink the presidency back to size and force 535 people to figure out a lasting solution to our problems, one that everyone can live with. This is no small thing: If the power of the legislative and executive branches were more equal—if Americans knew that every presidential election wasn’t “the most important election in our lifetime”—perhaps our politics wouldn’t be so broken.