Blog Verité

Less than a month after President Donald Trump took office, numerous federal judges have issued orders temporarily blocking and restraining parts of his agenda. From Trump’s executive order attempting to eliminate the constitutional right of children of undocumented immigrants to birthright citizenship to Elon Musk’s so-called “Department of Government Efficiency” attempting to supersede Congress, these judges have acted to preserve the rule of law. But the Trump administration is pushing back. For instance, a federal judge ruled the Trump administration violated his order to unfreeze federal grant and program funds. Vice President JD Vance has said judges “aren’t allowed” to control Trump’s “legitimate power.” Musk has even called for the impeachment of judges. This raises a critical question: How can we preserve the rule of law? And can we rely on the Supreme Court to do so?

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Chief Justice John Roberts may already have given us the answer in his timely and prescient December 31, 2024 year-end report. Roberts emphasized “our political system and economic strength depend on the rule of law.” He warned of threats to judicial independence, including potential “defiance of judgments lawfully entered” by the courts. It is a sad reflection on our fraught political climate and expectations about the new administration that Roberts felt he had to make these points. They should be obvious.

Unfortunately missing from Roberts’ report, though, is any introspective consideration of how the Supreme Court has contributed to the current state of our democracy and the extremely low esteem in which the Court itself is now held by many members of the public. That introspection is critical if the Court is to provide an effective check and balance to President Trump.

Roberts quoted retired Justice Anthony Kennedy’s observation that, “Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must.” When Supreme Court justices themselves feel free to depart from long-settled understandings of the Constitution, when they themselves expand their own authority on a wholesale basis, and when their own decisions fail to promote and preserve our democracy, then the words of Alexander Hamilton that Roberts quoted in his report become particularly apt: “No man can be sure that he may not to-morrow be the victim of a spirit of injustice, by which he may be a gainer today.”

You don’t have to look far for examples of how the current Court has raised this specter in a manner that many view as highly partisan. Take Roe v. Wade. Between 1973, when that decision was handed down, and 2022, 16 justices—10 appointed by Republican presidents—found the Constitution guarantees women the right to an abortion. But in 2022, five members of the current court (three appointed by President Trump who had pledged at their confirmation hearings that they would respect precedent) ruled those prior justices were “egregiously wrong,” “ignored or misstated” history and “abuse[d]” their “judicial authority.” The five ignored Roberts’ urging not to reach beyond the question of the constitutionality of Mississippi’s ban on abortion after fifteen weeks that was actually presented in that case. They eliminated the right completely.

Or take firearm safety. Until 2008, our Congress and state legislatures had the authority to enact legislation to protect us from gun violence. But a 5-4 majority of Republican appointed justices changed that. They decided the Second Amendment limits our elected representatives’ ability to do so. And in 2022, the Court narrowed the right of our elected representatives still further. It created a new rule that gun safety legislation is unconstitutional if there was no such law when the Second Amendment was ratified in 1791, long before the most dangerous weapons on our streets were invented. Last year, in a decision that Justice Sonia Sotomayor explained will have “deadly consequences,” the Court overturned a ban on bump stocks that transform semi-automatic weapons into machine guns. The proliferation of guns and the death and injury they inflict take a heavy toll. Ironically, they motivate people to vote for politicians who profess support for law and order but advocate for the rulings that lead to more guns on our streets.

Or consider the most fundamental right in a democracy—free and fair elections. In 2019, a 5-4 majority comprised entirely of Republican appointed justices decided the Constitution does not permit the federal courts to remedy the blatant gerrymandering of election districts even though “excessive partisanship” in districting leads to “unjust” results and is “incompatible with democratic principles.” In 2024, the Republican-appointed justices made it almost impossible to prevent even racial gerrymandering. And in 2010, in Citizens United, the Republican-appointed majority struck down congressional efforts to limit the corruptive and corrosive effects of big money on our political system. Elon Musk alone is said to have spent more than $250 million in 2024 to elect President Trump, and now has a central role in the new administration. A single extraordinarily wealthy individual can intimidate our elected representatives by threatening to finance a primary opponent at the next election.

Last July, the Supreme Court created a right to Presidential Immunity that is nowhere to be found in the language of the Constitution and inconsistent with the principle that no man is above the law. Justice Sotomayor aptly observed that “the Court effectively create[d] a law-free zone around the president, upsetting the status quo that has existed since the founding.” And as for political corruption, the Court last year interpreted a law enacted by Congress to prevent corruption not to apply to the receipt of “gratuities” by state and local officials for past official acts. Justice Ketanji Jackson, dissenting, wrote the Court’s “absurd and atextual reading of the statute is one only today’s Court could love.”

The Justices have also refused to create an enforceable ethics code that is binding on themselves, even though some of them have received expensive paid vacations and other benefits and have not recused in cases that call for it.

Roberts concluded his 2024 report with the admonition that, “The federal courts must do their part to preserve the public’s confidence in our institutions.” As he states, “At the end of the day, judges perform a critical function in our democracy.” It is now obvious that the Supreme Court regaining public confidence and performing its critical function will be more important than ever in the coming days. The Court will be called upon to protect our democracy and our constitutional rights without fear or favor.