The Supreme Court Isn’t Interested In Stopping Trump

This became evident on June 27, the final day of the court’s first term during Trump’s second administration, when the court’s conservative supermajority handed down a major victory for Trump restricting the ability of lower courts to issue nationwide injunctions to block executive actions.

The decision in Trump v. CASA, written by Justice Amy Coney Barrett and joined by the court’s other five conservative justices, came in response to the successful challenges in lower courts brought by individuals, immigrant rights groups and states to Trump’s effort to unilaterally change the meaning of the 14th Amendment’s right to birthright citizenship. Instead of ruling on Trump’s effort to change the meaning of the Constitution by himself, the court instead limited the ability of lower courts to stop him.

While the decision was highly technical and did not directly judge Trump’s effort to end birthright citizenship for some babies born in the U.S., its catastrophic impact should be judged based on the circumstances of this particular case.

Here, the Supreme Court took up a case on an issue that has been settled law for well over a century that brought an argument designed intentionally to game the judicial system in order to further empower a lawless president who has shown every willingness to transmute any minor technical win, or even a loss, into a mandate. Without further action, the court’s decision now means that different states have different rules for granting citizenship for the first time since the 19th century.

In disabling courts from ordering the president to obey the law, the conservative justices have created “a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead,” Justice Ketanji Brown Jackson wrote in dissent.

The decision is the latest in the court’s recent line of cases moving the country toward Caesarism.

In 2024, the court ruled in Trump v. Anderson that presidential candidates who have inspired insurrections against the government cannot be held off the ballot, despite the 14th Amendment’s restriction on insurrectionist officeholders. Later that year in Trump v. U.S., the court ruled that presidents may break the law and courts have extremely limited recourse to hear such cases. Now, they say courts are restricted in providing nationwide relief if a president issues edicts that violate the Constitution. And there is certainly more to come.

Trump v. CASA wasn’t even part of the court’s merits cases this term. Instead, it arose on the emergency, or shadow, docket. The merits docket largely cleared up remaining cases from the final year of President Joe Biden’s presidency. Despite a dearth of blockbuster cases, the court still continued to advance conservative red meat projects like restricting transgender rights, environmental regulations and greatly expanding rights for religious people, often at the expense of LGBTQ+ rights.

Perhaps the biggest decision came in the case of U.S. v. Skrmetti, which upheld state laws banning doctors from prescribing gender-affirming medical care for transgender minors by arguing that such bans do not discriminate based on sex. In his opinion joined by the court’s conservatives, Chief Justice John Roberts argued that banning medical care for gender dysphoria in minors cannot be sex discrimination because doctors can prescribe those same drugs for different diagnosed conditions.

This is evocative of the court’s notorious 1896 decision in Plessy v. Ferguson finding that segregated facilities do not amount to racial discrimination because they equally separate white people and Black people. Segregationists long relied on such arguments, in the 1967 case Loving v. Virginia, where Virginia argued that bans on interracial marriage aren’t discrimination because they ban white and Black people from marrying each other equally. (Virginia, of course, lost the case.)

Roberts’ argument in Skrmetti is no different. Roberts claims that the Tennessee law only discriminates based on a medical condition, not sex. A doctor cannot prescribe hormones, like estrogen, to a minor girl for gender dysphoria under Tennessee law, but she can prescribe those same hormones to a girl who is not experiencing gender dysphoria, but rather is concerned about unwanted facial hair. This being the case then, the law treats both transgender and non-transgender people equally because it allows both to obtain hormone or hormone-blocking treatments for any condition other than their gender dysphoria.

Where Trump v. CASA threatens to upend the court’s late 19th century jurisprudence on birthright citizenship, Skrmetti resurrects late 19th century arguments approving of separate but equal treatment.

Since this past term’s cases largely predated Trump’s return to office, the justices did not yet rule on his many violations of law during his first six months. The real action at the court on Trump’s actions has instead occurred on the shadow docket, where Trump has filed an incredible number of appeals for the court to halt injunctions imposed by lower courts. Of those cases, the court only heard arguments in Trump v. CASA. And in nearly all but one set of cases, the court’s conservatives sided with Trump.

The court’s conservatives overruled an injunction imposed by a lower court on Trump’s efforts to strip legal status from hundreds of thousands of immigrants from Venezuela, Cuba, Nicaragua and Haiti, allowing the Trump administration to round them up for deportation. They similarly overturned an injunction preventing the administration from deporting people to countries they are not from without questioning whether they would face harm or torture in that country. They blocked an injunction preventing the Department of Government Efficiency (DOGE) from accessing Social Security records. And previewed the next step in the court’s Caesarism cases by authorizing Trump to fire commissioners of independent agencies.

That latter case emerged after Trump fired National Labor Relations Board member Gwynne Wilcox and Merit Systems Protection Board member Cathy Harris despite longstanding court precedent upholding laws that only allow the president to fire independent agency members for cause. This change is the central objective of supporters of the unitary executive theory, which includes all six conservative justices, and is set to be one of many blockbuster decisions to come down in the court’s next term.

The court did buck Trump in one notable set of cases. After Trump invoked the Alien Enemies Act to label certain Venezuelan and Salvadoran immigrants as “alien enemies” subject to immediate removal, his administration rounded up hundreds of detainees and rendered them to a notorious prison in El Salvador without notice or due process and over the orders of a district court judge. The court heard challenges to these extraordinary renditions and ordered the administration to provide due process, including notice of removal and sufficient time to challenge it, while also ordering the return of Kilmar Abrego Garcia, who was wrongly removed to the Salvadoran prison.

Despite these orders, the administration continued to defy the court, initially refusing to return Abrego Garcia and trying to provide only 24 hours of notice to potential deportees, before the court ruled again that the administration had to provide sufficient notice and due process. It appeared, in this line of cases, that the court saw through, at least a little bit, the administration’s efforts to manipulate or deceive the courts with purposeful misreadings of their decisions.

The court’s brief understanding that this administration is not operating normally did not seem to penetrate beyond the Alien Enemies Act cases. This abnormal behavior did not penetrate the decision in Trump v. CASA where Barrett dismissed concerns that the administration would not obey an order from the court because “the Solicitor General represented that the Government will respect both the judgments and the opinions of this Court” — even though the administration had already openly flouted the court’s decision regarding Abrego Garcia.

“The majority’s certainty that the Government will keep its word is nothing short of a leap of faith, given that the Government has adopted a plainly unconstitutional policy in defiance of this Court’s precedent and then gamed the system to stymie this Court’s consideration of the policy’s merits,” Justice Sonia Sotomayor responded in her dissent.

The next term will resolve many of the issues that worked their way onto the court’s shadow docket in the early months of Trump’s second term and more, likely including whether Trump can unilaterally decide not to spend congressionally appropriated funds. Their decisions so far should provide no comfort that they will stop Trump’s autocratic excesses. If anything, they will amplify them.