Don’t Count on the U.S. Supreme Court to Corral Trump

Like most European democracies, the U.S. Constitution, laws and judicial rulings constrain executive power. No Kaiser, Czar or King. That was the seminal principle guiding the nation’s Founders.

However, Donald Trump appears determined to destroy their two and a half century experiment in democracy. Worse, the two institutions they designed to corral the President are kneeling before him.

Both the partisan Republican Congress and the Republican-dominated Supreme Court (the Court) have gone supine — opening a pathway for an all-powerful Presidency that the Founding Fathers reviled.

A constrained President

In 1787, when the U.S. Constitution replaced the Articles of Confederation, it crafted a government with three branches — a dominant legislature, certain powers enjoyed by an independent judiciary and an executive branch whose President was constrained by the other two.

Congress controlled national budgets. And the Constitution in Article II Section 3 explicitly subjugated the President to their directives — demanding the President “take care that the (Congressionally enacted) laws be faithfully executed.”

Additional constraints have been placed on the Presidency since then by Congress and the Supreme Court. Congress has created a host of independent agencies to manage an increasingly complex society — regulating sectors like banking, consumer protection, medicines and collective bargaining.

And laws like the Impoundment Control Act (1974) and Administrative Procedures Act (1946) have even constrained Presidential autonomy over executive branch agencies themselves.

The Trump assault

These core principles are being aggressively challenged by Donald Trump. Since his reelection, he has been a serial violator of numerous laws and judicial rulings — illegally firing officials like federal Inspectors Generals, neutering independent agencies like the National Labor Relations Board, freezing congressional spending and unilaterally dismantling federal agencies.

These unprecedented assertions of presidential power have not been challenged by the cowed Republican majority in Congress. In contrast, Democratic Party officials and aggrieved federal officials have filed numerous legal challenges.

And judges have for the most part supported their claims, rebuking Trump. These conflicts will ultimately be decided by the Supreme Court.

A rogue Supreme Court

In most of Europe, independent non-partisan judiciaries are typical — with non-political judges selected by consensus. For instance, Germany requires that two-thirds of its parliamentarians approve new judges.

The U.S. judicial system differs in fundamental ways. A bare majority of U.S. senators can appoint a judge in a highly politicized process. As a consequence of chance and chicanery over the past quarter century, a campaign by wealthy conservatives has produced the most partisan U.S. Supreme Court in history — its 6-3 majority symbiotically linked to the Republican Party.

The Supreme Court’s legal rulings are often dramatically out-of-step with public opinion, the willful majority of the Court determined to expand their political party’s reach and its corporatist agenda.

Their rulings have exalted the role of wealthy donors in elections, shielded bribery of public officials and installed a pay-to-play political system at the center of U.S. democracy. That is why analyses find that U.S. public policy is dominated by elite conservatives.

In contrast, most European nations strictly regulate private political donors, precluding oligarchs like the Koch family or Elon Musk spending millions of dollars to elect minions. That is why the U.S. electoral system is judged mediocre — of lower quality than systems in Europe and little better than corrupt Hungary.

A Supreme Court hostile to democracy

The Court’s rulings reflect a hostility to employees, labor unions, higher wages, minimum wage laws. and workplace safety. They enable the extraction of employee wage income for redistribution to corporate shareholders.

Legal scholars, jurisprudence experts and judicial analysts view the Court since 2005 as the most pro-business and anti-worker in at least a century.

The six justices with the most pro-business voting records of all time are all sitting on the court now.  Moreover, to shrink the pool of Democratic Party voters, Court rulings have embraced gerrymandering and voter suppression.

Court hostility to democratic norms is dramatized by the two worst Court decisions in history, both rendered last year, that gratuitously expanded Presidential power.

Trump: Above the law?

“The President is now a King” declared an angry Supreme Court Justice Sonia Sotomayor, criticizing the six Republican Justices whose ruling (Trump v. United States) in mid-2024 provided novel and unprecedented legal immunity for most of Trump’s acts — rendering him literally above the law.

That ruling vies with another 2024 ruling (Trump v. Anderson) as the worst Supreme Court decision in history. (The Constitution grants ultimate authority to individual states to establish standards for election candidates. Yet, the Court in Anderson restored the eligibility of Trump to seek the presidency in 2024 after several state courts has banned him under article 3 of the 14th Amendment for participating in the January 6, 2021 insurrection).

Anderson overruled the Constitution to allow an autocrat onto the 2024 ballot — a blunder explained by Joseph Goebbels in 1928, who noted ironically how foolish it is for democracies to allow electoral participation by would-be authoritarians.

A wannabe Napoleon

With Congressional Republicans cowed, the Court is the only remaining constraint on Trump. It is a weak reed, Court Republicans unwilling to challenge Trump.

At this point, ten or more U.S. courts below the Supreme Court are opposing Trump’s initiatives to freeze USAID spending and the like. Yet, encouraged by conservative legal scholars, Trump is aggressively challenging these courts, analogizing Napoleon in asserting “He who saves his country does not violate the law.”

Trump has adopted his traditional rope-a-dope tactic of deflecting, denying and obfuscating legal challenges. One judge has criticized those tactics, explaining his court’s order “does not permit defendants to simply search for and invoke new legal authorities as a post-hoc rationalization for the enjoined agency action.”

A Georgetown University law professor termed these antics “one step short of outright defiance.”

Heading toward a constitutional crisis?

It will take a while for these court cases to mature as legal arguments, court orders and appeals are debated. But a certain point will be reached where legal maneuvers and options are exhausted. Trump then may well seek to intimidate the Court, threatening defiance and a constitutional crisis.

Such presidential defiance is extraordinarily rare. There have been only two such instances in the United States since 1787 — in 1832 and 1861.

An irrelevant Supreme Court

Court Republicans must take care not to see Trump endanger the Supreme Court’s central role in U.S. governance.

The Republicans may seek to side-step a crisis by issuing compromise rulings. But relying on legalities to defuse Trump is a slippery slope certain to diminish Court authority.

Alternatively, Court Republicans can reject Trump and attempt to compel compliance using a variety of tools — imposing fines or sanctions, suspending or disbarring attorneys and whatnot.

But little known is that the Supreme Court relies on Department of Justice prosecutors and its Marshals Service to enforce Court orders. Moreover, if Trump refuses to comply, the Court will become de facto irrelevant as a copy-cat state, and even local officials rush to defy disfavored court orders.