The spate of recent Supreme Court decisions overturning Trump administration losses in the lower courts are all about saving face—and securing power.
Samuel Alito Jr., associate justice of the US Supreme Court, from left, Clarence Thomas, associate justice of the US Supreme Court, Brett Kavanaugh, associate justice of the US Supreme Court, and John Roberts, chief justice of the US Supreme Court, during the inauguration of Donald Trump on January 20, 2025.
(Chip Somodevilla / Getty Images / Bloomberg via Getty Images)
The best way to understand the Supreme Court’s recent spate of decisions rubber-stamping Donald Trump’s lawless use of executive power is to see them as part of the court’s own ongoing power grab. In this instance, the Republican justices have chosen to sacrifice the authority of the lower federal courts to their quest for legal supremacy. While the Supreme Court still hasn’t technically decided what to do about Trump’s facially illegal and unconstitutional actions, it has decided that the Supreme Court, and only the Supreme Court, gets to make that call.
Most people have noticed that Trump is getting his ass kicked in lower courts. Lower courts have attempted to stall Trump’s illegal deportations, block his firing of federal employees, stay his attacks on the First Amendment, and force him to restore funding authorized by Congress. Trump has flagrantly violated many of these orders, but those orders at least exist. The federal judiciary is generally standing up to Trump and for the rule of law.
But not the Supreme Court. Time and again, the high court has stayed the rulings of the lower courts on procedural or administrative grounds, allowing Trump to continue his lawless activities until such time as it deigns to weigh in on the merits of Trump’s actions. The Constitution does not vest the power of the federal judiciary solely in the Supreme Court, but both Trump and the Supreme Court would like everybody to think that it does. Trump disregards lower-court orders, and the Supreme Court effectively tells him he is right to do so.
This situation, created by the Supreme Court, has disastrous consequences for the ability of all of us to defend our civil and political rights from Trump’s tyrannical junta. The crime this government committed against Kilmar Armando Abrego Garcia illustrates the problem.
Abrego Garcia is a Venezuelan immigrant, swept up and deported to a concentration camp in El Salvador by Trump’s ICE goons as part of their process-free, mass deportation of people accused of being gang members. But Abrego Garcia was no gang member, and even Trump’s Department of Justice admits it made an error in deporting him.
District Court Judge Paula Xinis ordered Abrego Garcia immediately returned, but the Trump regime refused, and appealed to the Supreme Court. Earlier this week, Chief Justice John Roberts intervened, overruled Judge Xinis’s decision, and decided to keep Abrego Garcia in El Salvador until Roberts gets around to fully considering the merits of returning him to this country to defend his legal and constitutional rights. I have no idea when Roberts will get around to that: He is a busy man who works one, sometimes two, weeks per month. But in the meantime, Abrego Garcia is free to rot or die in an El Salvadorian torture-prison even though the government has already admitted it was wrong to send him there.
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If it can happen to Abrego Garcia, it can literally happen to any of us. This is a point that legal scholars, including people like Laurence Tribe and Erwin Chemerinsky, have been trying to make since Trump’s mass deportations began. Any of us could be falsely accused of being in a gang, any of us could be swept off the street and sent to El Salvador, and none of us would be able to seek immediate restitution of our rights in a court of law because John Roberts will not let the lower courts function.
This problem that Roberts has created transcends any solution Roberts (and the Republican justices who agree with him) may eventually offer. Trump has been given official Supreme Court license to act first and ask legal questions later. The court is telling Trump that he can do any harebrained, facially unconstitutional, descriptively fascist thing he can think of while Roberts and the Republican justices short-circuit the normal judicial review of such actions. Only later, at a time of Roberts’s own choosing, will the Supreme Court bother to weigh in on whether Trump’s actions were lawful—and by the time they do, it might already be too late to undo the pain, suffering, and damage Trump has caused. The Supreme Court is saying loudly to everybody paying attention that it will not “stop” Trump but only review his actions after the fact and give a retroactive justification or admonishment for things Trump has already done.
John Roberts and his Supreme Court are no better than the cops in Uvalde, cowering outside and waiting for the shooting to stop, instead of doing their job and trying to save lives.
I’ve previously written that the reason Roberts and his Federalist Society mafia are doing this is to avoid a direct confrontation with Trump over the rule of law. Trump has already violated lower-court orders. He will, I believe, violate a Supreme Court order he doesn’t like. Roberts is trying to avoid giving Trump an opportunity to ignore his precious court and expose them as feckless punks.
Roberts can achieve these cowardly goals even while seeming to rule against the Trump administration. I believe that’s what we’ll see in the Abrego Garcia case—once Roberts fits him in between golf outings. The abduction of this man, and the admission by Trump’s own administration that his kidnapping was in error, means that the Supreme Court will almost certainly rule that he should be returned, eventually. But Roberts won’t phrase it in terms of an “order.” Instead, he’ll take the bait already laid by Trump’s legal mouthpiece and current solicitor general, John Sauer, that the best Trump can do is try to “negotiate” with the Salvadoran government for Abrego Garcia’s release. According to Sauer, Trump has the authority to essentially create a black site in El Salvador—a place where people can be sent without due process of law, but cannot escape when the law demands. Seeing as this is essentially what happened at Guantánamo Bay after 9/11, it’s the most likely outcome of the Abrego Garcia case.
Roberts will “order” Trump to “negotiate” the release of Abrego Garcia, and Trump will say, “Welp, we tried but El Salvador wouldn’t go for it,” and that will be the end of that. Trump gets his way, and Roberts gets to say that Trump followed the Supreme Court’s ruling.
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Issuing an order with legal ambiguity on how that order is to be enforced is an old trick used by the Supreme Court when it doesn’t believe the rest of the government will follow its orders. The most famous use of that trick was in the landmark case, Brown v. Board of Ed. People may fondly remember Brown and its judicial order to desegregate schools, but Black people remember that the order came with an important caveat: “with all deliberate speed.” With the word “deliberate,” the court in Brown essentially told the South to desegregate whenever it got around to it, and the South responded by resisting desegregation in every conceivable way (and continues to resist, if you’ve been paying attention).
Again, everything Roberts is doing can be understood through the lens of power, not law. Roberts wants to take power away from the lower courts, give it to himself, and protect the appearance of his power from Trump’s complete disregard for any authority other than his own. The way Roberts will do this will be either to give Trump what he wants outright or “oppose” him with enough legal ambiguity that Roberts will be able to say Trump did what Roberts wanted, regardless of what Trump actually does.
Have you ever critically read a horoscope and noticed that its “predictions” are written in such an open-ended, vague way that it could fit any number of normal daily scenarios? “You will receive a phone call or message of surprising importance, but do not let it distract you from your mission or goals, as now is the time to focus on what truly matters.” That’s all Roberts is trying to do at this stage: He’s a cheap horoscope writer trying to bend the cosmos and the rule of law around whatever it is that Trump is going to do anyway.
John Roberts will not defend the Constitution. He’s only interested in covering his ass.
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