Ever since Chief Justice John Roberts swore in Donald Trump at the US Capitol January 20 – with the eight other Supreme Court justices looking on – the question has been whether they would restrain a president who vowed to upend the constitutional order.
The answer, a half-year later, is no.
That was underscored this month by the court’s decisions allowing Trump to fire another set of independent regulators, to dismantle the Department of Education and to deport migrants to dangerous countries where they have no citizenship or connection.
Meanwhile, the fissures among the nine have deepened. They have condemned each other in written opinions and revealed the personal strains in public appearances.
The conservative majority that controls the court has repeatedly undercut the US district court judges on the front lines who’ve held hearings, discerned the facts, and issued orders to check Trump actions.
In the most significant case so far related to Trump’s second term, touching on birthright citizenship, Justice Amy Coney Barrett pointedly addressed the role of lower court judges, saying they have a limited ability to block arguably unconstitutional moves.
“(F)ederal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them,” Barrett wrote for the conservative majority as it reversed a series of lower court decisions. “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
Dissenting in that late June case, Justice Ketanji Brown Jackson said the majority had essentially “shoved lower court judges out of the way.”
More recently, last Wednesday, the conservative majority overrode US district and appellate court judges to let Trump fire Biden-appointed members of the Consumer Product Safety Commission who’d been confirmed by the Senate and were still serving their terms. To justify the action, the conservative majority referred to an earlier action in May letting Trump remove members of two independent entities that protect private employees and federal workers, respectively, the National Labor Relations Board and Merit Systems Protection Board.
Neither in the earlier case nor the new one centered on the commission that shields consumers from hazardous products did the majority acknowledge that a 1935 precedent, Humphrey’s Executor v. United States, had protected such independent board members from being fired without legitimate reason such as misconduct. As lower court judges have noted, the justices have never reversed Humphrey’s Executor, leaving it as a precedent that judges – at least those below the nine justices – must follow.
Without formally taking up the issue, calling for briefing and holding arguments, the high court is nonetheless signaling a new course – obliquely.
“Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases,” the Supreme Court said in its unsigned order on July 23. “The stay we issued in (the May case) reflected ‘our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.’”
The message: They did it before, they can do it again.
Referring to the consequences, dissenting Justice Elena Kagan wrote, “By means of such actions, this Court may facilitate the permanent transfer of authority, piece by piece by piece, from one branch of Government to another.”
The high court similarly brushed aside lower court determinations when it ruled on July 14 against states and labor unions that had sued the Department of Education for its actions to dissolve the agency.
The majority declined to offer any hint of its rationale.
However, the dissenting liberal justices in a 19-page opinion picked up lower court judges’ emphasis on the history of the agency created by Congress nearly a half-century ago: “(T)he Department plays a vital role in this Nation’s education system, safeguarding equal access to learning and channeling billions of dollars to schools and students across the country each year. Only Congress has the power to abolish the Department.”
Referring to Education Secretary Linda McMahon’s directives removing half the staff and aiming for an eventual shutdown of the department, Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, added, “When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it.”
The six Republican-appointed conservatives have expressed no dread, offered no warnings that Trump’s actions might ever go too far, unlike the Democratic-appointed liberal dissenters. The conservatives, in fact, took pains to avoid any disapproval of Trump’s plan to end birthright citizenship – that is, the constitutional guarantee that children born in the US become citizens even if their parents are not – as they clipped lower courts’ power to impose nationwide injunctions.
That June 27 decision’s effect on his proposed lifting of birthright citizenship is still working its way through lower courts.
Sotomayor and Jackson have routinely protested in provocative terms. When Sotomayor dissented in a high-profile deportation case earlier this month, she warned that migrants flown out of the US to South Sudan could face torture or death.
The two liberals have also referred to the personal costs. Sotomayor said in a May speech that she sometimes returns to her office after a decision is issued, closes her door and weeps. Jackson, who seems most isolated from the rest of the justices, told an audience earlier this month she is kept up at night by “the state of our democracy.”
The conservatives who dominate have directed any angst or anger not toward the executive branch but toward their judicial colleagues.
In the birthright citizenship case, Barrett (in the majority) and Jackson (dissenting) traded insults that suggested a lack of mutual respect.
“We will not dwell on Justice Jackson’s argument,” Barrett wrote, even as she criticized her for choosing “a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever. … Rhetoric aside, Justice Jackson’s position is difficult to pin down.”
Jackson wrote that the Barrett majority had reduced the case to “a mind-numbingly technical query.” And Jackson, writing alone, asserted, “the majority sees a power grab—but not by a presumably lawless Executive choosing to act in a manner that flouts the plain text of the Constitution. Instead, to the majority, the power-hungry actors are … (wait for it) … the district courts.”
Roberts signed onto all of Barrett’s opinion in that late June case. If he and fellow conservatives engage in any special regard or deference, it’s not for their lower court colleagues or the liberals with whom they sit. It’s for Donald Trump.
