The Supreme Court will soon determine whether history judges it as a friend or foe of America’s constitutional Republic. Its decisions in the weeks and months ahead will also determine whether it is remembered as the Roberts court or the Trump court.
So far, the scale is tipping toward President Trump.
The Supreme Court’s legitimacy depends on its credibility with the American people. Last month, a poll by Marquette University Law School found that the high court has regained some public approval after sinking to record lows. Its favorable rating climbed to 51 percent in February, achieving a majority for the first time since March 2022.
Yet the court’s legitimacy remains tenuous. Facing a barrage of lawsuits against their actions, President Trump, Vice President JD Vance, and the special presidential assistant for chaos, Elon Musk, have hinted they may not obey the court’s decisions that go against them. Musk posted, “There needs to be an immediate wave of judicial impeachments.” Vance posted, “Judges aren’t allowed to control the executive’s legitimate power.” Quoting Napoleon, Trump tweeted, “He who saves the country does not violate any law.”
The people will judge the court harshly if it does not stand its ground and defend the republic. Asked if the president should be able to ignore the Supreme Court’s rulings, 83 percent of American adults said no.
The Roberts court has a lot to prove. The Constitution requires presidents to “take care that the laws be faithfully executed.” Nevertheless, last year, the justices ruled that former presidents can’t be prosecuted for committing crimes while performing their official duties.
More than 60 percent of the respondents in the Marquette survey oppose that ruling. And 54 percent said that politics rather than law motivates the justices’ decisions. Only about one in three respondents had “a lot” of confidence in the court.
Several of its decisions since John Roberts became chief justice in 2005 justify low confidence. In 2013, the court struck down a requirement under the historic Voting Rights Act of 1965 that states with histories of racism must get Justice Department clearance before changing their election laws. Writing for the majority, Roberts reasoned, “the Nation is no longer divided along those lines.” In the following decade, states, including many with histories of racial discrimination, added nearly 100 restrictive voting laws.
The court ruled in 2010 that corporations can give unlimited amounts of money to independent campaign committees. The justices acknowledged that money buys corporate access to lawmakers, but it naively rationalized that money doesn’t influence elected officials’ actions. Even if it did, “The appearance of influence or access will not cause the electorate to lose faith in this democracy,” the majority claimed.
It was wrong. By July 2023, the Pew Research Center found that 80 percent of Democrats and 83 percent of Republicans believed large donors have too much influence over Congress. Open Secrets observes that “the role of money in politics changed dramatically” after the decision: “Election spending has reached unprecedented heights, and … the public has less and less insight into the sources of that money.” The Brennan Center for Justice says, “Super PACs allow billionaires to pour unlimited amounts into campaigns, drowning out the voices of ordinary Americans.”
In another ill-considered decision, the court overturned a 40-year-old principle called the Chevron doctrine last year. The doctrine gave federal agencies’ experts the responsibility to interpret how best to regulate industry under the nation’s environmental protection laws. The justices decided that courts are qualified to make those technical decisions. As Yale environmental law professor Daniel Esty warned, the ruling risks “regulatory chaos” not only in environmental protection but also in health care, labor standards and “businesses large and small.”
The court’s most egregious appearance of political influence was how it slow-walked its decision last year on Donald Trump’s immunity case. Its delay helped keep Trump’s felony cases from going to trial before the election. “At every point in this process, the court has acted exactly as Trump’s legal team wished they would,” Slate noted.
Now, an emboldened Trump hints that he has kingly powers. He has trampled on laws protecting federal employees from political firings, requiring presidents to notify Congress before firing statutory inspectors general, prohibiting presidents from impounding appropriated funds and keeping citizens’ sensitive private information from unauthorized hands. As Trump and Elon Musk conduct mass firings and defund programs created by Congress, Trump’s minions claim it’s up to him to decide what’s in the nation’s interest. They’re wrong. Congress decides; presidents execute.
Trump has ignored the Constitution by trying to deny birthright citizenship to children born in America to illegal immigrants, usurping Congress’s control of federal programs and purse strings, and trampling on freedom of the press. He is harassing new media with lawsuits while his administration investigates alleged bias by the major television networks and the White House restricts access to news organizations that anger him.
Because the Republican-controlled Congress is derelict in its duty to defend its constitutional responsibilities, the Supreme Court has become the last line of institutional defense for the republic. By failing to push back against Trump, virtually every Republican in the House and Senate has violated their oath to defend the Constitution by aiding Trump’s ongoing insurrection. Under Section 3 of the 14th Amendment, none should be allowed to continue in public office or ever occupy one again.
To prevent ongoing damage to the government, the court should consider taking original jurisdiction over the president’s abuses of power rather than waiting for dozens of cases to climb the federal court system. Among other things, it might clarify that, despite its immunity ruling about presidential law-breaking, presidents are not allowed to violate the Constitution under any circumstances.
William S. Becker is co-editor of and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” and contributor to Democracy in a Hotter Time, named by the journal Nature as one of 2023’s five best science books. He previously served as a senior official in the Wisconsin Department of Justice. He is currently executive director of the Presidential Climate Action Project, a nonpartisan climate policy think tank unaffiliated with the White House.
