Crunch time arrived for the nine unelected and appointed-for-life Supreme Court justices as their new term started on 6 October. Now it will fall to them – six conservatives and three liberals – to rule in a succession of cases brought on by Donald Trump’s bruising conception of executive power. The president has warped any number of constitutional and democratic norms. On day one he set out to get rid of birth right citizenship. Thousands of federal employees have been summarily fired. There’s been an 800 per cent increase in the number of arrests of immigrants without criminal convictions. Tariffs have been imposed, paused and re-imposed. The country’s top universities have been assailed. Whole government departments have been closed down (Overseas Aid and Education). State power has been deployed against political opponents whose misdemeanours don’t appear to amount to much beyond being rude about Trump.
Most commentary about the Supreme Court’s daunting new workload has reckoned that “the stakes have never been higher”. The stakes are indeed high, but there’s a bit of recency bias in this summary. The court, approaching its 240th birthday, has been battling through consequential dramas since long before Trump.
In 1857 the court decided that African Americans, whether slaves or free, could not be American citizens and had no legal status. Further, it ruled that Congress could not ban slavery in any new states and territories. That wretched ruling – the Dred Scott case – helped provoke the Civil War. The northern states felt the court was part of a pro-slavery conspiracy.
Much more recently, in December 2000, the world stared for days at pictures of the exterior of the august Supreme Court building as the justices inside considered the chaos of the “hanging chads” vote in Florida. The Court’s ruling – to stop the Florida recounts – foreclosed Al Gore’s chances of becoming president and cleared the way for George W Bush. With some redolence of 1857, most Democrats thought they’d been vanquished by a bunch of partisan justices. But this time there was no serious protest. The court’s resolution was accepted entirely peaceably.
There was palpable anxiety before last November’s Trump-Biden election, though. It was feared that, given Trump’s inability to accept defeat, the Supreme Court would again have to decide an election. Public trust in the court, at just a notch above 40 per cent, was vastly lower than it was in 2000. In the event the electorate saved America from that particular nightmare. But the justices know, and the country knows too, that the court’s authority has never been so fragile.
There’s a long tradition of justices persuading themselves, and trying to persuade the rest of us, that they are immune to the tides of public opinion. Chief Justice John Roberts, part of the current conservative majority, has often reasoned that the court is not in the popularity business. He argues that the founders gave the justices life tenure precisely because they knew that issuing decisions consistent with the law and the Constitution would make them unpopular.
It sounds noble. It flatters justices as Olympian figures, rigorous, independent and detached from the vulgarities of politics. But it really isn’t true. The institution has reacted to public opinion, and is soaked in politics.
In the mid-1930s a reactionary court threw out most of Franklin Delano Roosevelt’s New Deal legislation. The president had been unable to appoint any justices in his first term, and the majority of them hated the expansion of federal power he’d unleashed in order to haul America out of the Great Depression. By 1936, Roosevelt had had enough of their resistance. He accused the court of being grotesquely out of touch – “from the horse and buggy age,” he branded them – as well as politically motivated. He won re-election in a landslide (523 electoral college votes to eight), and then announced a court-packing plan, which would have entitled him to appoint six new justices and secure a majority for his major policies.
What followed was the biggest domestic crisis since the Civil War. A substantial section of FDR’s own party thought the president had gone too far. However woeful the court’s decisions, court-packing was constitutional sacrilege. Two justices on the court, including the Chief Justice, flipped their votes in New Deal cases and the court began to rule in FDR’s favour. Yet FDR ploughed on with the court-packing plan. The Senate voted it down, 70 to 20. But there’s little else to explain why those two justices changed their minds other than a need to protect themselves from FDR.
Later, as the conservative justices died or retired, FDR did what all presidents do. He chose men (they were all men until 1981) whom he thought would be sympathetic to his version of executive power. No president is so holy as to choose anyone who he thinks likely to obstruct him. In that sense, the whole business of appointing justices is inherently freighted with politics.
Even so, until 30 years ago a lot of presidential choices were ratified by the Senate with bipartisan support. That couldn’t happen now. The last Supreme Court justice to be appointed – Ketanji Brown Jackson, in February 2022 – was nominated by Joe Biden and scraped through with only three of 50 Republican senators voting for her. Conversely all 47 Democrats voted against Donald Trump’s last pick, Amy Coney Barrett, during his first term. An intrinsically political process has turned into a deeply partisan, sprawling and rancorous spectacle, played out live on television, and in the case of two of the conservative justices, Clarence Thomas and Brett Kavanaugh, featuring allegations of serious sexual misdemeanours.
Also sapping the court’s prestige is its obedience. Some justices down the ages have surprised the presidents who chose them. The majority that ruled for Bush in 2000 should not be confused with the full-on conservative group that now dominates the court. It was a Republican-appointed justice, Anthony Kennedy, who authored the 5-4 decision that legalised same-sex marriage ten years ago. He, along with another Republican appointee, Sandra Day O’Connor, was a swing vote.
There’s nobody like them now. The court is calcified. None of its six conservatives has dissented on ending federal abortion rights, extending presidential immunity (thus squashing any chance that Trump could be convicted for his various attempts to subvert Biden’s win in the 2020 election), expanding the rights of gun owners, striking down affirmative action for college admissions or limiting the power of the Environmental Protection Agency.
The three liberal justices – Sonia Sotomayor, Elena Kagan and Brown Jackson – are growing increasingly cross. In an institution that has historically placed huge value on civility and etiquette, politeness has gone out the window. Justices no longer use the formula “I respectfully dissent”. “Respect” has vanished; the general tone is unsparing. Justice Kagan’s conclusion on the environmental protection case suggested the court was simply out of its intellectual depth. “It does not have a clue about how to address climate change” she said. “The court appoints itself – instead of Congress or the expert agency – the decisionmaker on climate policy. I cannot think of many things more frightening.”
Chief Justice Roberts, on the dominant side, publicly reprimanded the pesky liberals in July 2023: “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.”
The court is an unhappy place. Roberts, who really does care about the court’s reputation, might prefer it if the court was not the only serious check left on Trump. But there’s not much choice. The Republican Party is now not much more than a Trump fan club and it’s unlikely anyone from its ranks will try to rein in the president. Congress do nothing either. The Republicans have a majority in both houses, and in any event, it has collapsed as an effective law-making institution. Bipartisan agreements on any significant proposal are close to impossible. It’s easier to play to the media or smear your opponents than to spend countless hours in a committee room doing the work needed to actually pass a law or two. This paralysis suits Trump, who has never been interested in the grinding work of legislating. He governs by a mixture of vitriolic social media burps and executive orders, which have cascaded out of the White House in unprecedented numbers.
And so aggrieved parties have attempted to use the lower courts to halt the executive juggernaut. There are 300 or so cases flying around (it’s hard to be precise). Many of the judges who have heard these cases and found against Trump – a frequent occurrence – were put on the bench by Republican presidents. But that hasn’t shielded them from retaliation from the president. In March, a judge who had stopped Trump from using the 1798 Alien Enemies Act to deport alleged gang members found himself labelled a “troublemaker and agitator”. Trump also claimed he should be impeached.
This was one bombastic step too far for Roberts. He issued a written statement reprimanding Trump, if in Olympian style: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.” Still, Roberts will remain tolerant of Trump’s methods. In June, Roberts was part of the 6-3 majority that shrunk the power of the lower courts to pause Trump’s progress. But if the conservative justices continue to serve Trump, they may come to regret it. A future Democratic president would certainly try to end life tenure. As the nine justices seek to rule on matters central to American democracy, they must surely know that the country is crashing the guardrails that – however imperfectly – have always made its pluralism work. The court has made plenty of dubious decisions in its long history. But for all that it is a great American institution. What it does in the next few months is going to be momentous. Because it’s not only the Trump’s method that is on trial – the Supreme Court itself is.
Mark Damazer presents the BBC Archive On 4 programme, “Nine Votes That Count”. It is available on BBC Sounds.
[Further reading: Bari Weiss’s American fairy tale]
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