The Supreme Court Is Backing Trump's Power Grab

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Early in the second Trump term, as Donald Trump was asserting a level of nearly autocratic power that his predecessors certainly did not think they possessed, I released an essay, audio essay, video essay, called Don't Believe Him.

And in that essay, I argued that he was asserting all this power because he was actually weak.

He was moving so fast because everywhere else in the government, he was likely to be stopped, stopped in Congress, and stopped in the courts.

And so it was very, very, very important not to treat what Trump was doing as fixed, not to treat it as something that could not be undone, because it was only in assuming he had that power that he would really have it.

Otherwise, he was going to get mired down in the same inertia and checks and balances that had mired all of his predecessors.

For a while, that bet looked sort of right.

Trump was getting stopped in the courts.

They were ruling against him overwhelmingly, over and over and over again.

But that was the early months of the administration.

We were still then waiting for the Supreme Court to weigh in.

And in the last few months, it has weighed in.

And it has weighed in overwhelmingly for Donald Trump and the powers he seeks.

Even as a skeptic of the Supreme Court, Even as a skeptic of this Supreme Court in particular, I thought Trump might get 20, 30% of the power that he wanted.

So far, he's getting a hell of a lot more than that.

I guess the good news here is that maybe we're not going to have the constitutional showdown many feared, but the bad news is it's because Trump is getting what he wanted.

Is it because this Supreme Court is submitting to him, afraid of showdown?

Is it because this Supreme Court has wanted this kind of presidency, has in fact been building the constitutional structure and permission for it for years.

To help me think this through, I want to bring Kate Shaw back on the podcast.

Shaw is a former Supreme Court clerk.

She is a law professor at the University of Pennsylvania Law School and the co-host of the fantastic podcast, Strict Scrutiny.

She joins me now.

Kate Shaw, welcome back to the show.

Thanks for having me, Azra.

So earlier this year, shortly after Donald Trump took office, I made the case that Trump was acting like a dictator, but didn't actually have dictatorial power.

In a bunch of subsequent episodes, people came on the show and said, look, the courts are stopping him.

The system is sort of working.

Now the Supreme Court has weighed in a number of times.

Where are we now?

I think things look worse.

for the rule of law and better for Trump's dictatorial aspirations now than they did three or four months ago.

So I think it's right that in the first couple couple of months of the administration, Trump is making these just wildly broad assertions of executive authority and executive orders and other kinds of actions.

And he is running into the kind of buzzsaw of the lower courts applying settled doctrine, reading the Constitution and statutes, and saying, like, no, you can't do that.

That's not how any of this works.

And that is still ongoing.

But starting in about April, the Supreme Court started to get into the mix.

And in a series of rulings, so it's actually 16 in a row,

the Supreme Court has sided with Trump and against challenges to Trump and against lower courts that have ruled against Trump in this wild streak of victories for Trump that have largely happened under the radar because they are happening on the shadow docket.

Can you see what the shadow docket is?

Sure.

So people are most familiar with the Supreme Court's work on what we call the merits docket.

So those are cases the court decides it's going to take.

There are briefs filed, oral arguments, and then the court writes and releases written opinions, usually like the big ones at the end of June.

That's the merits docket.

The court also does a lot of work on what we call the shadow docket.

And some of that is like pretty trivial stuff, how much time people are going to get in oral arguments and things like that.

But increasingly, parties have come to the Supreme Court asking for emergency relief, usually because they've been ruled against by the lower courts.

And the court, often in the dead of night, often without any reasoning or written opinion at all, disposes of these requests for emergency relief.

And that's this kind of streak of victories that Trump has had, ruling after ruling in favor of Trump, allowing him to do a lot of, I think, wildly damaging and destructive things, even though the only written opinion assessing the lawfulness of his conduct has come from the lower courts and has been against him.

Let's go through a couple of these clusters of asserted powers that I think at least a couple of months ago felt very contested.

So

the administration launches, Doge emerges, and they begin firing federal employees en masse in ways that many of us did not think you could fire federal employees because we have these very complex civil service protections.

And anybody who's ever been around these processes knows how difficult it is to hire and fire.

But they begin doing mass firings, often without real costs.

You know, you insert first name and last name here have been terminated kind of emails.

This gets stopped, challenged in a bunch of lower courts.

Where did the Supreme Court come in?

Largely, Trump has prevailed in these efforts.

Now, the court hasn't on the merits actually grappled with some of these questions, right?

The statutes that provide civil service protections are still on the books.

And the Supreme Court has not in any way said those laws are unconstitutional, even though I think it's pretty clear that Trump and many of his advisors think that's the case, right?

Some of those memos or emails that you just referenced, the reason for termination that is given is literally two words, Article 2.

The president's power under Article 2 entitles him to fire anyone.

Like, I do think they think that.

So, the court has addressed a number of cases involving these terminations, some of them high-level officials.

So, people like one of the members of the National Labor Relations Board or the Merit Systems Protection Board.

Statutes give those officials protection against being fired just because the president feels like it or wants to put somebody else in the position.

And Trump, in clear facial violations of those statutes, fired those people.

And actually, this case involving, again, the NLRB and MSPB members made it to the Supreme Court on the shadow docket.

And there we did get a short written opinion that basically said,

these officials exercise significant executive authority.

And so the president has to be able to fire them at will.

So I think that reasoning is wrong, but at least it's there.

So, you know, we know the court thinks it will ultimately decide this probably next term, but thinks that these heads of multi-member agencies, Trump can fire anytime he wants, regardless of what statutes say.

So Doge came in, Trump came in, and without going to Congress, decapitated, eviscerated a series of agencies, most famously USAID.

I would say this is the right way to understand what they did, the Consumer Financial Protection Bureau, to some degree, the Department of Education to a very large degree.

Again, you know, I remember when Barack Obama wanted to restructure the Commerce Department and Congress wasn't interested and so he couldn't do it.

What has happened there?

Yeah, right.

I mean, so imagine Barack Obama deciding to just abolish by executive order the Commerce Department or like Joe Biden, we're going to get rid of ICE.

Like the idea that he would just by fiat fire everyone in these agencies and that the court would allow it is, I think, kind of preposterous.

I don't think there's any way that the Supreme Court would have allowed a different president to proceed as this president is proceeding, which isn't the question you asked, but I do think that that's for the pressure.

It's not irrelevant to the questions I have, though.

Yeah.

And I mean, in terms of, you know, I think you're right that Trump has proceeded in a few different ways, right?

Like, so funding cuts are sort of one tool that Trump has used.

Department of Education was this series of, you know, kind of first, there's an executive order saying, let's do a wind down.

And then there are these directives from the secretary.

And there's a challenge that says, this is a functional elimination of an agency.

Congress passed a statute creating an agency, creating components of the agency, conferring authorities and imposing obligations on the officials in these parts of this agency.

And only Congress can undo all of that.

And so the actions taken pursuant to that order were, you know, sort of shrouded in this kind of legal cover, like we're doing reorgs and trying to make the agency more efficient.

But really, the challenge was that this was a way to dismantle the agency.

And that is what the lower courts found was done.

This secretary didn't have the authority to take the steps that she took by statute.

And this is one of the examples of cases in which the court ruled against the lower court, stayed this lower court injunction, but didn't provide any reasoning.

So we just don't know why.

And yet the effect is essentially to make it impossible for the Department of Education to carry out many of its statutorily conferred obligations and functions, like providing a real education for millions of children with disabilities and many, many other services.

There is this theory called the unitary executive theory.

It's been bouncing around for a long time.

And it's sort of what you see the Trump administration asserting.

And I think what you see the Summer Court in a way responding to.

What is it?

And what is the case for it, right?

If you had to, you're talking to your law students.

And you got a steel man unitary executive.

What's the argument you make?

So since the beginning, there has been a debate about what kind of power the president possesses.

So the first sentence of Article II says that the executive power shall be vested in a president of the United States.

So what is the executive power?

What does it mean for it to be vested in a president?

There's a debate from the very beginning.

There, James Madison is associated with the view that All that sentence really means is it shall be vested in a president.

Like there's going to be one president because there have been debate about a plural executive, and there's a name for the office that's president.

But that sentence doesn't do that much more.

And then there's another view that the executive power shall be vested actually confers really expansive authority on the president.

And maybe that includes some of the powers that the king possessed, especially around things like national security and foreign affairs.

So, really broad power.

So, this debate is essentially around from the beginning, but the unitary executive as a theory of presidential power is really just traceable to the early 1980s and the Reagan Justice Department, which is where the kind of conservative legal movement is born.

And it essentially says the president has expansive authority in a vertical sense, like he has the authority to direct everybody in the executive branch, including maybe heads of independent agencies where Congress has tried to insulate those people from the president, but also horizontal power, including powers that Congress is disabled from regulating.

So it's just, people have lots of different kind of versions of the unitary executive theory, but I think that's probably a good distillation.

Very broad powers, both vertical and horizontal.

Well, I also understand it as encompassing a critique I don't fully agree with, but I actually have some sympathy for, which is the idea that the administrative state,

the sort of broad executive branch,

is an unaccountable fourth branch of government.

And that, you know, in Congress, everything is under Congress's control.

But that when you kind of add up the regulatory language, a statutory language, civil service protections, the fact that bureaucracies grow on their own and have their own kind of institutional dynamics,

that the public elects the president to lead the executive branch, and he, in fact, doesn't,

or she in fact doesn't.

And that you need this sort of unitary executive power, this ability to hire and fire, to destroy agencies, to replace whomever you want, because who is supposed to be in charge?

of the executive branch of all these agencies, if not the president?

And so if the president can't fire people, then in what way

is he actually in charge of it?

And if he's not in charge of it, then haven't we broken a fundamental mechanism of democratic accountability?

Yeah.

I think the response to that is that, you know, democratic accountability works in a few different ways.

So Congress is obviously also democratically accountable, and Congress has made a series of choices that give the president enormous authority over the administrative state, but do provide these pockets where, yeah, the president does encounter some friction because actually there are certain things, you know, kind of of financial regulatory bodies and monetary policy are sort of key areas that for a long time Congress has said maybe politics should encounter some resistance and we should create a degree of independence and insulation in those bodies.

And the president can still, of course, he can hire and fire the top officials in the cabinet departments and in everything that we sort of think of as traditional executive branch agencies.

But this sort of cluster of independent agencies, where, by the way, the president does still have a lot of authority, he actually can still fire people.

He just has to provide some reasons.

He can't fire them because he wants to put in a copartisan or a lackey instead.

Or maybe he can try, because actually there haven't been very many legal challenges that have tested the meaning of those for-cause protections.

They have operated instead to disincentivize presidents from trying to fire these high-level officials at those kinds of agencies.

Now, of course, we can have policy debates.

And of course, you're having those policy debates about where that friction gets really problematic and thwarts the ability to make policy happen.

But the idea that it's unconstitutional for Congress to provide some of these protections from the president, I think is not a winning argument.

Aaron Ross Powell, there have been a lot of cases around the deportation powers and also the lack of due process, hearings, et cetera, around deportation.

Where do those stand?

I would say three categories.

First, this group of challenges to individuals sent to Seacot, right, this Salvadoran prison that Arego-Garcia and a number of others were held in.

The administration had something of a mixed set of outcomes in those challenges.

The Supreme Court said, well, these challenges were brought using the wrong procedural device and in the wrong place, but the Supreme Court did confirm that due process is required, even in the context of individuals designated under this Alien Enemies Act.

So Stephen Miller touted this as like a victory for Trump.

I think that most legal commentators viewed it as a mixed result, but a really important reaffirmation of the importance of due process.

Obrego Garcia, I think that's also true about he also prevailed in a different lower court.

The Supreme Court, reviewing his case, basically confirmed that the lower court didn't exceed her authority by ordering the administration to facilitate his return.

Although they sort of parsed words and said lower courts can't direct the president to effectuate, but they can require facilitation.

A little unclear what the difference there is.

But again, a mixed outcome, I would say, for the Trump administration.

And you're right, Mr.

Brego-Garcia was subsequently, despite the administration's protest that it just couldn't.

He was returned to the United States.

And the last of these involves the third country removals.

And that's when I'm hard-pressed to to really explain.

I mean, so this is a group of individuals who, under a statute that does give the executive branch some authority to send people to countries, not the country they came from, and not even a country they have some other meaningful tie to, but some other, any other country the administration can find that will agree to take them.

So during their removal proceedings, because these are already people who had orders of removal, but not to this third country, right, South Sudan.

So they never could have made arguments about how they shouldn't have been sent to South Sudan.

Exactly.

And these are folks from various places, including Southeast Asia, no connection to South Sudan whatsoever.

Lower court carefully finds we're going to enjoin the administration from removing these people until there is some process afforded.

You know, you have to actually give some kind of notice and opportunity for people to object under guarantees against things like facing torture.

And the Supreme Court, with not a word of reasoning, stays that lower court order and allows these third country removals to go forward.

So the absolute most obviously unconstitutional thing the Trump administration did upon coming back into office was just eliminate birthright citizenship.

And I think most people saw that and it got stopped by the courts very, very quickly, as you can't walk into office and rewrite the Constitution, right?

There's lots of things Democrats might like to change in the Constitution, lots of things Republicans might like to change, but it's there.

There's an amendment process.

If you want to go through the amendment process, you are welcome to try.

A court

immediately beats Trump back on that.

I think calls it grossly unconstitutional or something very similar.

And then the Supreme Court does intervene.

How so?

So I was wondering what example you're going to give, and I totally agree, right?

So this is a day one executive order that is flagrantly unconstitutional.

The first sentence of the 14th Amendment confers citizenship on all persons born or naturalized in the United States and subject to the jurisdiction thereof.

It has never been seriously questioned that the 14th Amendment means what we have always understood it to mean.

People born here are citizens, full stop.

The Supreme court in 1898 and a number of other cases has confirmed what the text of the constitution says pretty clearly and yet on day one he issues an executive order that flies in the face of all of that and you're right it's not just one it's actually a number of lower courts quickly find the order is facially unconstitutional and enjoying it and the administration runs to the Supreme Court as it has in a number of these cases, but interestingly, not asking the court to review the merits of the lower court's conclusions that the executive order is unconstitutional, but on the question of the scope of relief that these lower courts provided.

So they issued what are known as nationwide injunctions, basically saying this executive order is unconstitutional.

The administration cannot apply it as to anyone.

And what the administration came to the Supreme Court asking is for a ruling that those orders, these nationwide injunctions, exceed the scope of judicial authority.

That this is a thing that has become very routine.

Lower courts responding to actions by Republican, Democratic presidents alike in recent decades have issued these nationwide injunctions.

There has been a lot of debate about whether many of them go too far.

Joe Biden's Solicitor General at the end of Biden's term said, you all should look at this.

Maybe we shouldn't be doing this this way anymore.

I think as a policy matter, there is something democratically troubling about a policy process that results in some action, an executive order, or something else that affects everybody.

And presumably, the nation has participated in the choice of the person who is making that decision.

And a single judge in maybe, you know, Amarillo, Texas can grind that democratic process to a halt.

There is something genuinely troubling about that.

So there's been a serious debate that I don't want to downplay about the constitutional foundations and the kind of policy wisdom of courts, single unelected judges having this power to grind to a halt an executive action.

Those are all important and fair debates.

But I do think that it is telling that the Supreme Court was very uninterested in entertaining those arguments during the Biden administration.

And yet, in the face of this executive order that is so clearly and wildly unconstitutional, this is the case in which they decided to take up the question, do lower courts have this power?

And on the very last day of the Supreme Court term, in an opinion written by Justice Amy Coney Barrett, the court basically said, no, lower courts don't have the authority to issue nationwide injunctions.

It exceeds the scope of their power.

So that's the world we live in now.

Lower courts don't have this tool, although they do have other tools.

So where does birthright citizenship stand?

Immediately, new lawsuits were filed in lower courts challenging birthright citizenship using a different device, using class action.

So get a group of people, define the people in that class here, you know, people who would be covered by this executive order and were expecting to give birth.

And two lower courts have certified those classes and actually have ruled for them.

So right now, there are lower court orders finding, again, using a different legal device that this order is unconstitutional.

And that'll likely be back before the Supreme Court before too long.

I want to hold on the question of the nationwide injunction, because on the one hand, it is a slightly wild remedy, and there are definitely places where it has been applied that I've disagreed.

And on the other,

if the Supreme Court works slowly, they have still, for instance, not ruled on the birthright citizenship question on its merits.

So, if an administration wanted to do something blatantly unconstitutional that violates rights in some other way,

and the

courts cannot stop it from happening nationwide.

And it's not really something you can attack in a class action lawsuit, which is, I think, a little bit of a weird back door to go through.

Then

what?

In the sense that courts are meant to be a check on an administration acting fundamentally unlawfully,

it seems like what the Roberts Court decided is that they are not going to be that check in that way.

And the executive can move so much faster than the courts, which has always been the thing the Trump administration is exploiting.

And it seems like the Roberts Court watched this happening

and said, yeah, the executive should just be able to exploit this huge.

I mean, there's a lot of things you can do that once it's finished.

You cannot reverse it a year and a half later because the damage is done.

The agency is gone.

The people are gone.

The harms have been committed.

You cannot, like, having broken the egg, you can't put the egg back together.

Right.

Y'all can't be on wrong, right?

Yes.

I mean, absolutely.

So, yes, I mean, I think the Supreme Court has, again, functionally allowed the administration to do a lot of irreversible damage through this order.

This is the case that it decided, having seen what Trump was doing in his first couple of months in office, decided to essentially allow him to do all of that and more without the real prospect of lower courts acting as the kind of bulwark that they were in the early days of the administration.

Now, Brett Kafana writes a concurrence in which he says, he sort of acknowledges the kind of dynamics that you're talking about and says, but we, the Supreme Court, actually can, if there are serious problems and something needs an emergency answer that applies nationwide, we, the Supreme Court, are in a position to step in, right, and save.

Oh, so they get discretion to do that.

Exactly.

No, they don't even really explain why lower courts don't or lower courts exceed their judicial authority if they issue these injunctions, but the Supreme Court can do it.

I mean, there's this weird passage in the opinion where Barrett says, we can speak and everyone will listen.

And what she cites as support for that is a concession made by Trump's Solicitor General at the oral argument: like, we'll listen to you if you tell us we can't do something.

And it just feels like wildly kind of debasing or something to say, we have all this power.

And the thing that makes me know we have this power is you've said you'll listen to us, not because you have to, but because you've decided out of discretion to tell us you will.

It's a really strange passage, but that's where we are.

Well, let's say that, like me, you don't quite buy into the idea that the Supreme Court applies

politically neutral reasoning in all cases and is free from any partisan impulses or politics.

And so you imagine, well, all these new powers and new possibilities are being unlocked.

And, you know, maybe the next Democratic president is going to want to use them.

So maybe a Democratic version of what we're looking at with the birthright citizenship case is maybe six months before an election, Democrats decide to pass a bill.

that regulates campaign finance reform, that regulates campaign spending in a way that would not be allowed under Citizens United or Buckley v.

Vallejo, right?

The kind of strong campaign finance reform that many of us wish would pass.

And of course, maybe it won't survive all the challenges.

But in a year when, say, Elon Musk is trying to spend $600 million to buy the election, that, you know, the Supreme Court doesn't move that fast.

And Trump just showed that, you know, you get this kind of clock in which you can do anything.

But so the Supreme Court, what it is saying is that

It's not saying that a Democrat can't use that power, but the way I interpret what you just said is that a Democratic president can probably not use a strategy, the muzzle velocity strategy of the Trump administration, because the Supreme Court has reserved for itself in cases when it is aroused.

Absolutely.

I mean, I'll say a couple of things.

One, I think the court says we can move quickly when we want to move quickly.

I mean, John Roberts is proud of this, right?

They moved in a matter of weeks when the Colorado Supreme Court disqualified Trump from appearing on the Colorado ballot.

They needed to get that decision out before Super Tuesday.

They did.

The TikTok ban, they resolved in a matter of days.

They moved on to Breco Garcia fairly quickly.

They did.

That's true.

But then they can slow walk when they want to.

They slow walked Trump's challenge to Jack Smith's actual indictment of Trump.

And even though Smith tried to fast-track that, so we'd have an answer to whether he could stand trial well before the election.

So I think it's right.

They can manipulate timing.

Absolutely.

It is also, there's like a substantive asymmetry, which is that it's easier to move at muzzle velocity to break than to build.

And I think if we're thinking about a Democratic president, you you know, Democratic presidents like to build things.

And I think it's harder to do that by fiat without Congress.

Not impossible, but I think it's differently challenging than it is to break.

Although there may be some things next time that they're going to want to break.

Like you and Matt, you think about the ice buildup

and the construction of what certainly appears to me to be something becoming very close to a paramilitary force.

And you could imagine the next Democratic president coming in and saying, I want this gone.

This is out of control.

And it would seem under these powers that they don't have to wait for Congress.

I agree with that.

I would not rule out John Roberts and the other five trying to find a way to distinguish Department of Education, USAID from ICE.

But I think that on the law, a Democratic president would be squarely within the precedent set by the Supreme Court to do exactly what he has done, but with different agencies.

So to

kind of back this out for a minute, think back to the Obama administration or Joe Biden.

What power

did they and their lawyers not think they had?

What did they not think they could do

that the Supreme Court has basically said

you can do?

I mean, I think refuse to spend money appropriated by Congress, remove heads of independent agencies.

protected by statute from summary firing, fire civil servants without cause, dismantle federal agencies, you know, call up the National Guard on the thinnest of pretexts.

I mean, that's a preliminary, you know, half dozen powers.

But I mean, fundamentally, they didn't think they had the power to disregard statutes passed by Congress and the text of the Constitution.

And I don't want to fetishize text, also just the practices under the Constitution.

They didn't think they had the power to do things like treat the presidency as an office that permits its occupant to use the power of the state to reward friends and punish enemies and engage in self-dealing and enrichment.

Like those are not constitutional principles that are written down, and they're really about practices.

And those administrations didn't exercise those powers, but I don't think they wanted to.

I'm not sure any modern president has wanted to exercise these powers.

So that is a preliminary list, but I think it's a long one.

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Something I see in the Roberts court

is an insistence on

treating

political actors, typically Republican political actors,

with

a level of generosity that requires ignoring huge amounts of things that they have said, done, written.

And so you end up with these like two political systems, the one that is happening

and the one that exists in legal filings to John Roberts.

And you saw this in a way in Trump's first term as well, with the Muslim man,

where Trump and people around him had said extremely clearly what this was, why it was being done, and then came up with a somewhat different legal rationale.

And Roberts has this tendency to say, ignore what's in front of you, ignore what you're being told, ignore what Trump's appointees are saying on Fox News or in public.

They say to us that there's a national security rationale, and we are not allowed.

We cannot, we have to assume that if the executive says says there's a national security rationale, there is.

And this is an executive operating in good faith, attempting to carry out the laws and the constitution as we understand them.

Question mark.

Question marks, I guess.

Yeah, I mean,

so Trump versus Hawaii, right?

You have Trump on the campaign trail and then doubling down once he's inaugurated, basically saying we're going to institute a Muslim ban.

Like that's what he was doing.

And yeah, I mean, the court does describe some of the really virulently anti-Muslim statements that led up to the enactment of the ban, but then the court just credulously says, well,

this is basically a normal president behaving normally.

He has said that there are these vetting deficiencies and, you know, presidents should do a better job of sort of, you know, speaking the most noble parts of our constitution and our traditions.

But we're not going to invalidate on the basis of these statements,

this proclamation issued by the president following regular order.

So you're right.

I think that the kind of presumption of good faith and regularity is very much on display.

Like, I mean, I will say in the first Trump term, there were two cases in which that presumption of good faith actually didn't carry the day.

So Roberts writes an opinion invalidating the effort to add a citizenship question to the 2020 census, and he also invalidates the effort to rescind the DACA program administratively.

And both are basically because the administration either lied or didn't really fully consider the implications of the courses of action that it was taking.

And so those actually were important losses for Trump.

And I'm not sure where that John Roberts is right now.

This seems to me to get to the shadow docket problem because one thing that I read the Supreme Court doing

is

functionally chastising a lot of lower courts and saying, you've gotten ahead of yourselves.

You are issuing these sweeping rulings based on these reads of what you think the Trump administration is doing or is going to do.

And you're not giving the executive enough deference.

I mean, it's very hard for me to see what this court has done and not feel like John Roberts and his, you know, Republican colleagues feel that the big threat that they've really had to step in to intercede on

is not the executive branch overreaching, but the judicial branch overreaching.

They seem much more concerned about lower courts stopping Donald Trump from doing things that are, again, facially unconstitutional and illegal

than about Donald Trump doing things that are unconstitutional or illegal.

It's just struck me as a strange priority set.

I agree.

I think, and it's especially hard to justify what they have communicated.

And I think you're right about what they're communicating about the lower courts if you've actually followed the proceedings in any of these cases.

Like these are judges who I think really are trying very hard to accommodate and defer where appropriate to the executive branch.

Many of them Republican appointed judges.

I mean, every president, including the former first term president Trump, has appointed judges who have ruled against Trump in all kinds of cases.

So it's, you know, I think it's over 100 lower court rulings against the Trump administration, appointed by presidents of both parties, you know, essentially district courts in every circuit in the country.

So this is not like Obama and Biden appointees trying to thwart the policy priorities of the Trump administration.

I think that's just not remotely a fair characterization of what the lower courts are doing.

They're just doing their jobs.

And I have to imagine that they are pretty incensed by the way that the court seems to be treating them.

Again, just trying to do their best to resolve the disputes that come before them.

The administration is violating the law.

Like, it's kind of that simple.

It just has this quality to me of weaponized naivete.

I mean, there's a famous Federalist papers where, you know, if men were angels, we wouldn't need all this government.

And I read the Supreme Court

do do what feels to me like say repeatedly, let's first assume Donald Trump is an angel and then let's work from there.

Yeah.

So when we were doing episodes on this a couple months ago, one of the big concerns was a constitutional crisis.

The Supreme Court saying you have to do X, the Trump administration saying make us.

And then who knows where we are.

One explanation I've heard from some people more positively towards John Roberts is he is trying to avoid that scenario.

Partially why everything's on the shadow docket is we're not really seeing him upend all this precedent.

We're seeing him back down from a fight.

And maybe in some way that is

cowardice is a better part of valor here.

Do you buy that?

I can't rule it out as a possibility.

Now, what exactly he's keeping his powder dry for, I don't know, as we are seeing the dismantling of these kind of key structures.

Democratic precedents.

Sorry.

No, that's probably, maybe that's right.

Yeah.

But

I do think that

conserving institutional capital

is one explanation.

They are handing him this series of wins that they don't think are big, broad wins.

And they're continuing to be sort of heated, right?

Areco gracia did come back.

Individuals at Seacott were sent to Venezuela.

So they have not been defied.

So maybe it has worked in some fashion.

But that's not the only,

we have to also consider the possibility that John Roberts, who has always had a very expansive conception of executive power and is on board with a lot of the substantive policy priorities of the Trump administration, that he is actually just fine with what we are seeing emanate from the executive branch and from the White House.

I mean, I thought he cared enough, honestly, about the basic structures of our constitutional democracy that he would not want to co-sign its destruction.

But I'm not sure there's that much evidence of that right now.

But it's early.

It is.

Well, you do see these two visions of John Roberts sort of at war with each other in legal commentary.

So there's one of Roberts as the court's moderate institutionalist figure, somebody whose primary concern is maintaining the court's independence, its credibility, its strength, somebody who sort of seemed to want to be in the middle of the Dobbs decision.

And on different things, has not gone all the way to the right.

Then there's this other vision of him.

So in a recent piece for The Atlantic, the NYU law law professor Peter Shane

argued that Trump is just executing the presidency John Roberts has built over not a series of shadow docket rulings, but a series of huge rulings that he authored.

Rulings on immunity, rulings on the Voting Rights Act, rulings on the Muslim ban in Trump's first term.

And that John Roberts has been building the structure of this quasi-dictatorial executive for some time now, and Trump is just stepping into the office that Roberts has designed for him.

So going backwards, what sort of the rulings that maybe fit that pattern?

And how much do you buy that idea of it?

Yeah, I mean, I think there is a lot to that theory of sort of what is driving John Roberts.

I think that you're right about the two different John Roberts.

And so we are basically 20 years to the day almost that John Roberts was nominated to be the Chief Justice.

You know, he joins the court in 05.

And in 06 and 07, there are actually some, you see some breadcrumbs.

Roberts is skeptical of limits on, you know, money in elections under the First Amendment.

And in some ways, like those breadcrumbs that Roberts dropped then come to fruition in Citizens United.

2013 is the Shelby County case, striking down the heart of the pre-clearance regime of the Voting Rights Act, the part that required really the states in the former Confederacy to get the federal government to sign off before they changed anything with respect to their voting practices.

So that's a 2013 opinion that Roberts writes.

But actually, there are seeds of that in his earlier writings in a 2009 case, also expressing some doubts about the Voting Rights Act.

And actually, those doubts you can see that trace all the way back to his time as a young Reagan Justice Department staff, where he has been skeptical of the Voting Rights Act for a long time.

He authors the immunity decision, that is, I think, a wildly wrong decision handing expansive immunity to ex-presidents for basically everything they do while president within their official capacities.

But that is an opinion that is very hard to square with another opinion that he wrote in this case, Trump versus Vance, where Trump was trying to get out of responding to a subpoena from the Manhattan DA.

It was actually subpoena to his financial institutions, but holding his records.

And Roberts, in that opinion, which is a 2020 opinion, writes in pretty sweeping terms about how presidents are not kings.

So those are two different John Roberts.

And I can't at all, as I sit here, sort of square,

having seen Trump in office once and deciding it's really important for us to hold the line on presidents not being kings.

and deciding really at the outset before even he's kind of returning to office to allow presidents to essentially function as kings, and then also announcing that federal courts can't intervene in partisan gerrymandering, which is another Roberts' opinion.

So, you know, you have to pull a lot of threads together.

But I do think that expansive authority for both the Supreme Court and the president and sort of limited authority for all other actors, agencies, and lower courts and Congress, that I mean, I think is as good a distillation as Robert's philosophy as I think I could offer, you know, 20 years in.

I want to zone in on the gerrymandering cases for a minute minute, because we're having this showdown right now, where Trump has pushed Texas and possibly other red states to do a very, very aggressive partisan gerrymandering.

Now you see California and maybe some blue states try to counter it.

But this is the world John Roberts built for us, right?

What Trump is doing is what John Roberts allowed him to do.

What Texas is doing is what John Roberts allowed them to do.

Tell me a bit about that case.

Sure.

So that's Rucho versus Common Cause, a case in which the Supreme Court, after kind of equivocating over a number of years and really decades about what kinds of limits the Constitution places on the ability to engage in extreme partisan gerrymanders, said definitively, the Constitution has nothing to say about this.

And it is kind of rich having taken this very active role in striking down a lot of what Congress has done with respect to trying to regulate money in elections and a very active role in striking down, you know, part of and maybe, you know, more to come of the Voting Rights Act.

So the court is very active in really creating itself the terms in which our democracy is waged.

And then when it comes to these challenges to partisan gerrymanders, where there are very clear arguments that there have to be some limits in the ability of a party in power to further entrench itself in power.

And the question has always been just, well, what exactly are the limits that courts could announce and then could enforce?

And in this Rucho case, the court says, no, there aren't any.

There are no judicially discernible or manageable standards.

And so essentially, gerrymandering just needs to be resolved in the political process, which is not going to happen because it just by definition.

It needs to be electorally resolved now that you have

distorted the elections.

Totally.

And the court does say, well, maybe state courts resolving challenges to gerrymanders under state constitutions could be a solution or independent redistricting commissions.

And of course, some states have taken that up.

But,

you know, federal courts, I think, if they're supposed to do anything, it really should be to make sure that the mechanisms of democracy work so that federal courts can kind of get out of the way and really just let the people and their choices run the show.

And the court's refusal to intervene here, I think, makes all that very, very difficult.

So then, what now can Trump do, right?

We are

so early in the second term.

And as these powers seem to expand, right?

If you're Stephen Miller sitting in the White House, you're Russ Vought.

And you see the kind of record you're racking up at the Supreme Court,

what seems like it's on the table

in terms of executive aggression that if I had asked you six months ago, five months ago, you would have said is not really on the table?

I mean, I suppose they could try more seriously to remove federal judges.

There are articles of impeachment that they've introduced against a couple of district judges who have ruled against them, those haven't gone anywhere.

They could try to undertake a serious effort to actually target the judiciary in a different way.

I mean, I think anything's on the table in terms of the midterm elections.

You know, future elections are probably what I would identify.

The scholar Kim Lee and Shepley, I think I've heard her say this a few times: that the best way to sort of understand if you're still in a democracy is not like, you know, not the last election, but the next one.

Like, what does the next election look like?

And so I do think the midterm elections will be really important.

And honestly, I would say that six months ago, I don't think that a third term seeking one would have been on the table.

The 22nd Amendment is, if anything, even clearer than the first sentence of the 14th Amendment.

He cannot run for a serve a third term.

And yet I don't think he's joking when he talks about doing it.

And you think it's possible?

I've sort of

pushed it into the not possible category.

I wouldn't rule anything out.

And how the Supreme Court would get around the clear text of the 22nd Amendment, I don't know.

But I actually thought Section 3 of the 14th Amendment was actually pretty clear, too.

So we can have the Obama-Trump showdown

that all American politics has been leading to for so long?

I mean,

only Trump can run again.

The true Avengers and the United States.

Only non-consecrive politics.

It's only non-consecutive terms.

Non-consecutive terms.

I mean, that is in the Republican House member who introduced legislation to try to make this possible.

They did try to

keep them bomb off.

Yeah.

But I mean,

I would not, I don't love voicing this as,

but

I don't think we can rule it out.

The elections piece is the really dangerous piece.

I mean, you look at the redistricting effort right now.

I mean, that is what democratic backsliding is.

You begin to use the power you have to make it impossible to lose power.

And then you can't have oversight conducted of you.

There There can't be corruption investigations that the House might otherwise do, right?

There are a lot of ways this can be warped.

I mean, even if they don't do anything but redistrict across the country so aggressively that they can't lose power in the House and the Senate is pretty locked in for them,

then the sort of normal forms of oversight that would give people information about, you know, how to think about the 2028 election evaporates.

And the level of democratic backsliding we're in seems pretty significant.

Then you can imagine things around the deployment of troops in different places.

I really try not to be alarmist.

I really try not to be alarmist.

I don't think if you read books about other authoritarian takeovers, the first year

looks so different than this.

In fact, it often looks more modest.

This is, I think the real experts will, I mean, at least that a lot of people think this is faster than the first year.

They have gone so fast.

I mean, we also haven't even talked about targeting for the speech, you know, citizens.

They've started with non-citizens and I think then moving to citizens.

How do you see that happen?

I mean, I don't know.

I truly don't even know what the legal authority they would identify.

I mean, I presume they, I mean, I don't think that the targeting of Democratic elected officials is something I would have predicted six months ago.

So whether we're talking about Representative McIver or Senator Padilla or our controller Brad Lander or individuals.

These are people who've been arrested at trying to sort of be there at ICE or ICE RAIDS or press conferences in the PDF case.

Yeah.

So Democratic officials, the opposition party, party, elected officials being arrested, you know, Trump having his goons target Tish James, the Attorney General of New York, and now it seems like there's some targeting of a Democratic appointee to the Federal Reserve, Lisa Cook, also based on the same, like maybe there's some mortgage issue that they're claiming needs to be looked into, Adam Schiff as well.

You know, that's targeting the political opposition for the substance of their views.

I mean, political leaders, and targeting critics.

I don't think they will announce they are targeting critics because they have criticized.

I think they will manufacture some justification, mortgage fraud or whatever.

But I think that is something we absolutely have to view as within the realm of the possible.

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Whatever John Roberts wants in his self-conception, I think it's fair to say he doesn't imagine himself to be the handmaiden of the death of American democracy.

So what is your steel man version of Roberts?

Like what he would say listening to this podcast about how we're just hysterical liberals?

I mean, I think he would probably say he was sort of forged in the cauldron of the early conservative legal movement in the 1980s in the Reagan Justice Department.

And I think they all thought the kind of Warren court had gone too far, that it had made up rights the Constitution doesn't confer, and that his court is offering a necessary corrective with respect to how we understand the Constitution, and that it's also kind of reallocating power.

I think he does think

that the right reading of the Constitution is one that gives the president really expansive authority.

I think it's a pretty ahistorical and incorrect reading of the kind of nature of the presidency and sort of how it was designed as an office.

But I do think that he does hold the view that the president possesses enormous power and it is to the court to properly protect the exercise of that power against whatever threats might exist, whether those are lower courts or independent agencies or even Congress.

Again, I think that's wrong, but I do think that those are genuinely held views.

And again, I think it is possible that he thinks that he is, he understands that Trump will make increasingly aggressive assertions of power.

And

maybe the court will be able to stop him and be heeded if it has built up enough institutional capital with the right people in the early days of the Trump administration.

I don't really think that the evidence supports that thesis as much as it does others, but I can't rule it out.

I also think people are scared of causing Donald Trump.

I don't know that John Roberts is, but I also don't know that that's not at all a factor, that people don't want to be.

the target of his ire on social media and elsewhere, and that staying in his good graces is something that John Roberts thinks is in his own interest, but also long term in the institutional interests of the Supreme Court.

I guess one question I have for you is, how much do you understand what is happening here is simple partisanship?

That there are six members of the Supreme Court who are to greater or lesser degree highly oriented towards Donald Trump, right?

You have Samuel Lito or Clarence Thomas, who I think, you know, if they could be out there in a MAGA hat, functionally would be.

Roberts, who I think, like a lot of Republicans, probably has mixed feelings, but has moved closer to Trump rather than further over the years.

You know, how much is all this talking about statute and unitary executive theory?

To you, how much is this all just politics by a slightly more complex set of textual argumentation?

I think the answer is probably different if you're asking about Alito or Thomas, for whom I think this really is just partisanship.

And I think the others, it is more mixed.

I mean, I think they are genuinely committed to a substantive vision of both the presidency and the nation that aligns reasonably well with Trump's.

I don't assume they have a lot of personal affection for Donald Trump.

I actually think for Roberts, he probably doesn't, although I don't know that.

But I think that I have long resisted and am finding it harder to resist like really reductive partisan explanations for their conduct, that in particular, all they have done to shore up his presidency in the dark of night where they are not going to be held accountable by the public for doing it, I think is a lot of additional evidence that they really just are partisan justices in support of Donald Trump.

It gets to a broader question that that I've been struggling with for many years and in many ways going back before Trump, but it feels like it is getting worse and worse and more and more serious, which is just

we just don't seem to be in a functioning constitutional system.

So, I mean, you go back to the framing of all this.

There's an expectation these branches will check each other.

Congress will jealously guard its prerogatives, the executive and the courts.

And what you end up having is a Republican court that seems to not want to guard against executive overreach.

You have a Republican Congress that has become completely quiescent.

And even when it is not just a Republican Congress, Congress in general, and this is true when it's a Democrat in power too, because of the filibuster and other things, is not able to act as a full branch.

And, you know, we've known for many decades we have a sort of expanding amount of executive power, but we just seem to have been pushed into breakdown.

Congress is fine with it because it's Republicans who are cowed by Trump.

And now you have John Roberts basically saying it's not the court's job to step in and stop an out-of-control executive.

I don't know what to call that except a breakdown.

I'm curious if you think that's either too alarmist or wrong on the facts somehow.

No, I don't.

I mean, I think that constitutional breakdown, constitutional collapse, I don't think, I mean, I don't think that it's irreparable.

I don't think we are beyond some point of no return, but I don't think our constitutional order is functioning properly at the moment.

And I think the Supreme Court bears a lot of responsibility.

What would it look like to try to fix any of this?

So I think there is a divide among kind of legal scholars, right?

Reforming the Supreme Court or just radically disempowering the Supreme Court.

And I think that I have sympathy for both positions, but I actually think that any kind of court reform has to be paired with meaningful democratic democratic reform.

I mean, court reform itself won't actually get us very far.

So things like eliminating the filibuster, DC statehood, maybe expanding the size of the House.

I mean, actually meaningful voting rights legislation.

that will do things like end gerrymandering and restore much of what the court has already dismantled and maybe further poise to dismantle of the Voting Rights Act.

I think that all those things are important.

And I also think that some by statute and maybe some by constitutional amendment really limiting limiting the powers of the president because so much of the presidency has been governed by norms and not hard law.

I think sort of big democracy reform of which court reform is a part, I think would have to be at the top of the agenda for any future democratic president.

The fundamental deformity of our entire system is it doesn't take parties seriously.

This is a problem, I think, in a lot of the Supreme Court rulings where it's like, well, there is a remedy.

That remedy is called impeachment.

And it's true that impeachment exists.

It's also true that we functionally know impeachment is now impossible.

And that's been true for some time.

You know, if you wanted to do anything, I think you'd have to come to the view that parties are part of the constitutional system.

They are part of our political system.

They are fundamental institutions.

And maybe they need to be balanced, right?

You can imagine, Buddha Judge talked about this at one point.

You could imagine a court that just balanced parties.

And so it had that credibility, but that this world where you have a system that is never designed for parties, that we know is deformed by parties, and we're just going to wait until one party or the other truly breaks it.

It just

is a crazy risk we're running.

Yeah, I mean, I think it is absolutely right that there are a number of really profound flaws in our constitutional design.

And one of them is just the failure of the framers to account for the, you know, not quite simultaneous, but virtually simultaneous with the ratification of the constitution.

The rise of parties happens almost immediately, and nothing in the document accounts for it.

And nor have any of our amendment efforts since done anything to meaningfully reflect that reality back.

I mean, the co-partisanship across the executive branch and the legislative branch overtaking institutional self-interest obviously very much predates Trump.

But the kind of current fever pitch, I think, has everything to do with Trump.

And I do think the question is, is this the new normal or not?

And then I'll always have

books you'd recommend to the audience.

Well, since we were talking about whether these justices are really just partisans in robes, I have to recommend my podcast co-host Leah Lippmann's book, Lawless, which is a very accessible and pretty scathing indictment of the Roberts Court and I think a full-throated defense of the thesis that the Republican justices, as she calls them, are just partisans in robes.

So recommend that one.

I was on vacation recently and read Gary Steingart's new novel, Vera or Faith, which is, you know, a fun kind of near-future dystopia, but has a constitutional amendment storyline that

I really was not expecting it, and it's dark, but really, really smart.

And so I I recommend that.

And on the topic of constitutional amendments, I'm reading a galley of Jill Lepore, the brilliant Harvard historian, her new book, We the People, which is about constitutional amendment,

which if we think that the lack of anticipation of party in the Constitution is one real design flaw.

Another one is that Article 5, the way you amend the Constitution, is just way, way too hard.

I mean, that's related to polarization, obviously.

But it's very hard to amend the Constitution today.

Supermajorities in both houses, supermajority ratification in the states.

But having lost the habit of constitutional amendment and the muscle memory is just enormously problematic and maybe is a kind of set of conditions that we just, an unamendable document is not one we can continue to be governed by.

And so I'm still reading it, so I'm not sure what the solution is, but it's a beautiful and like really galvanizing book about constitutional amendment.

So really recommend it.

Kate Shaw, thank you very much.

Thank you, Ezra.

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