{"id":340,"date":"2026-07-06T14:11:22","date_gmt":"2026-07-06T14:11:22","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=340"},"modified":"2026-07-06T14:11:22","modified_gmt":"2026-07-06T14:11:22","slug":"the-powerful-resilient-independent-supreme-court","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=340","title":{"rendered":"The powerful, resilient, independent Supreme Court"},"content":{"rendered":"
\n

Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not\u00a0necessarily\u00a0reflect the opinions of SCOTUSblog or its staff.<\/em><\/p>\n

Read more Is the Roberts court hyperopic or willfully blind?<\/a><\/p>\n

About a year ago the Trump administration appeared to have defied legal restraints on the presidency to the point of a \u201cconstitutional crisis.\u201d And in the eyes of many, the Supreme Court was primarily responsible.<\/p>\n

From the beginning, Trump 2.0 engaged in an avalanche of controversial actions, many unlawful, all fueled by the elimination of internal lawyerly friction. Congress, controlled by the president\u2019s party, was silent or enabling, even when Trump was steamrolling its prerogatives. Some private institutions that might have been a counterweight to Trump \u2013 including law firms and media outlets \u2013 were on their heels due to Trump\u2019s weaponization of the presidency against them.<\/p>\n

That left the third branch of government, the federal judiciary. This is the branch, as Hamilton memorably\u00a0wrote, that possesses \u201cneither FORCE nor WILL, but merely judgment,\u201d and thus \u201cmust ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.\u201d<\/p>\n

The seemingly weakest of the three branches appeared at points last year unable to effectively control Trump. The administration assaulted lower federal courts with unmatched vitriol and disrespect. In some cases it ignored or skirted judicial orders. The Supreme Court, to many, appeared not just to tolerate these moves but to fuel them by ruling in most interim order applications in support of the administration\u2019s broad claims of executive power.<\/p>\n

From the beginning the court was, to put it gently, in an awkward spot. Its conservative majority had long believed, as it had made plain during the\u00a0Obama\u00a0and\u00a0\u00a0administrations, that Article II demanded a broad unitary executive. Trump pushed this position much further than any prior president and thus clarified its potentially destructive consequences. Perhaps (as some thought) the court should have tempered its views about executive power in the face of this new reality. Or perhaps (as others thought) such a backdown would have elevated expediency over law and called the courts\u2019 credibility into question.<\/p>\n

Making matters more complex and dangerous for the court was the serious possibility of presidential defiance. While the administration didn\u2019t threaten the Supreme Court the way it did the lower courts, the court was aware \u2013 as all of constitutional history made clear \u2013 that it lacked tools, beyond words, to force a defiant president to comply with its rulings. Critics who wanted the court to stand up to the president more aggressively and earlier elided this point and thus begged the question of whether more forceful judicial pushback would have in fact better constrained the president.<\/p>\n

The court, as Curtis Bradley and Neil Siegel have\u00a0argued, has two related roles:<\/p>\n

The first is legal: The Court interprets and applies the Constitution and federal statutes in disputes before it. The second is political: The Court must survive in a world in which it ultimately must persuade powerful politicians to abide by its decisions. In short, the Court has two central tasks, especially when under threat \u2014 preserving the rule of law, and protecting itself. Commentators who believe that the Court should focus exclusively on its legal function fail to credit sufficiently the fact that, even today, the Court does not just act; it can also be acted upon \u2014 or ignored.<\/p><\/blockquote>\n

The early Trump 2.0 whirlwind threatened the court as much as any other institution. There is no way to know for sure, but had the court acted more aggressively against the president earlier on, it might have invited actual presidential defiance \u2013 and who knows where that would have left the rule of law. The court, unlike its critics from the left, was likely sensitive to the limits of its power vis-\u00e0-vis the president. And in addition to seeking to implement its vision of the law and ensure presidential compliance, the court had to manage another flank: lower federal courts sometimes out of sync with its vision.<\/p>\n

One of the court\u2019s core strategies in the last 18 months has been to \u201ctemporize\u201d \u2013 i.e., \u201cto delay making a decision or offering a view vis a vis the president in order to gain time or some other advantage.\u201d I used this phrase to describe the court\u2019s early interim orders in March 2025. But I think it describes the court\u2019s overall strategy in Trump 2.0: Go slow, pick battles carefully, give the president the wins he \u201cdeserves\u201d (based on the majority\u2019s legal vision), garner trust on that and other bases over time, wait out the president\u2019s initial surge, and stand up to the president (and in the process slow that surge) when he crosses important lines. (Bradley and Siegel have a useful list of other strategies, some of which the court has deployed.)<\/p>\n

One can disagree with many of the Supreme Court decisions since Jan. 20, 2025. And one can disagree about which lines are important not to cross. But the fact is that the court\u2019s strategy has preserved and possibly enhanced its authority vis-\u00e0-vis the president\u00a0and<\/em>\u00a0has resulted in the successful enforcement of significant legal constraints on the presidency, all in the face of a nearly unprecedented set of challenges.<\/p>\n

First, Will Baude is\u00a0right\u00a0that the court\u2019s \u201cdecisions on birthright citizenship (), Election Day (), Federal Reserve independence () and geofence warrants () \u2014 all on top of the tariffs decision from a few months ago () \u2014 show that this is one of the most independent courts I can imagine at this stage of the second Trump administration.\u201d<\/p>\n

Baude is also right that it is hard to think of a time \u201cthat a court with six members appointed by the president\u2019s party and three of his own appointees ruled against him on at least three different things he seemed to care a lot about in one term.\u201d He might have added the court\u2019s shutdown of two other initiatives dear to the president:\u00a0\u00a0and the domestic\u00a0.<\/p>\n

And of course the court issued many decisions that progressives abhor. The court is implementing its view of constitutional and statutory law to the serious consternation, in different decisions, of both left and right. In short, it is acting with independence.<\/p>\n

Read more Looking back and looking ahead<\/a><\/p>\n

Second, the court, armed only with \u201cjudgment\u201d and words, has secured remarkable compliance from the law-indifferent, court-hating, sword-wielding, power-bragging Trump administration.<\/p>\n

In connection with the domestic deployments, Trump\u00a0proclaimed\u00a0in August 2025: \u201cI have the right to do anything I want to do. I\u2019m the president of the United States.\u201d It was for many a frightening, bewildering time. Four months later, the court in an imaginative opinion declined to stay a lower court injunction of the deployment. The administration quickly bowed to the decision and withdrew all domestic deployments. It also complied with the tariff ruling even though the president was apoplectic about it, and with all of the other very consequential decisions the administration lost.<\/p>\n

This compliance is no small achievement given the context. But there is more. As I have previously\u00a0noted, the court last year in\u00a0 extracted from the U.S. solicitor general the\u00a0unprecedented concession\u00a0that the government would \u201crespect the opinions and the judgments of the Supreme Court.\u201d That might not seem like a big deal since every administration, almost all the time, has complied with the judgments and opinions of the court.<\/p>\n

But the departmentalist-minded executive branch has always hesitated to state this point out loud. And while the SG and the court were careful not to say whether this \u201crespect\u201d was legally required or a matter of prudence, the concession was extraordinary nonetheless, and has been followed, so far, by the executive branch.<\/p>\n

Third, in assessing the court\u2019s record vis-\u00e0-vis the executive branch, it is a mistake to focus on the court\u2019s docket alone. On the merits docket over which the court wields broad control, the administration has basically lost as many decisions as it has won. But on the interim orders docket where the court has much less control (because it must rule on every interim order application), the administration has won the vast majority of its cases. Some view the differential win rate on the Supreme Court\u2019s interim orders docket compared to the lower court interim orders as evidence that the lower courts are standing up more to the president, and that the Supreme Court is not standing up enough.<\/p>\n

But that inference does not follow. As I have previously\u00a0explained, the SG has been very selective in choosing to apply for interim order relief in cases where he knew, based on the court\u2019s jurisprudence and disposition, that the government had a good chance to win. In\u00a0well more\u00a0than a hundred cases, lower courts have enjoined the government from illegal action, and the SG has not sought interim relief in the Supreme Court.<\/p>\n

\u201cTo understand how well the federal courts have stood up to Trump, one must consider the judiciary as a system,\u201d I\u00a0once wrote. \u201cThe system is decentralized at the lower court level but hierarchical to the Supreme Court, which is largely responsible for where the law stands in the system at any particular time.\u201d<\/p>\n

One cannot understand the efficacy of the lower court injunctions that remain in place without taking into account that the SG knows that in most of these cases he cannot get a different result in the Supreme Court on an interim basis. In this respect the court has an important invisible influence on the efficacy of the scores of lower court injunctions. And in this respect, too, the entire federal judiciary, despite inevitable vertical and horizontal disagreements, has worked in underappreciated tandem to place extraordinary checks on the administration. And for that, the judiciary as a whole deserves enormous credit, since it is the main institution checking the president.<\/p>\n

I am not arguing in support of any particular Supreme Court decision, though I agree with most of them. I am not arguing that the court has pushed back adequately, or inadequately, on the president. I am not denying that the court might have (depending on one\u2019s view of the law) done more to push back against the president, though I believe that every serious pushback ran the risk of presidential defiance, especially early on. And I realize that the court is a \u201cthey,\u201d not an \u201cit,\u201d and that shifting majorities \u2013 typically with the chief justice in the majority \u2013 are responsible for the patterns I have identified.<\/p>\n

With those caveats, my claim is simply that in the face of a devilishly difficult challenge to its authority, the court, led by the chief justice, has sustained its view of the law while standing up to the president in contexts he cared about a lot, and has secured presidential compliance that many thought might not be possible.<\/p>\n

It ain\u2019t over till it\u2019s over, but the court has done a remarkable job thus far of vindicating its authority. The vindication is all the more remarkable because the court is checking the president at a time when its approval ratings are relatively low and when it is under broad attack from both the left and right unhappy with its decisions \u2013 with the right demanding more justices in the mold of Clarence Thomas and Samuel Alito, and the left increasingly determined to pack the court in its image when it regains power.<\/p>\n

Read more A tale of two justices and their children\u2019s books<\/a><\/p>\n

This column was originally published in <\/em>Executive Functions.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not\u00a0necessarily\u00a0reflect the opinions of SCOTUSblog or its staff. Read more Is the Roberts court hyperopic or willfully blind? About a year ago the Trump administration appeared to have defied legal restraints on the presidency to the point of a \u201cconstitutional crisis.\u201d […]<\/p>\n","protected":false},"author":1,"featured_media":284,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,18],"tags":[],"class_list":["post-340","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-commentary","category-scotus-outside-opinions"],"yoast_head":"\nThe powerful, resilient, independent Supreme Court - American Service Review<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanservicereview.com\/?p=340\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The powerful, resilient, independent Supreme Court - American Service Review\" \/>\n<meta property=\"og:description\" content=\"Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not\u00a0necessarily\u00a0reflect the opinions of SCOTUSblog or its staff. 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