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Supreme Court avoids confronting Trump so far, even when it rules against him

John Anderson
John Anderson

 When the Supreme Court last year wrestled with whether to grant then-former President Donald Trump broad immunity from prosecution, conservative Justice Neil Gorsuch stressed the ruling did not just apply to Trump but was “for the ages.”

His comment during the April 2024 oral argument encapsulates how at least some members of the court, which has a 6-3 conservative majority, appear to view Trump, now in office again, as just another Republican president — even as commentators and lower court judges, both Republican and Democratic appointees, have raised the alarm about what they view as unlawful policies and conduct.

The Supreme Court ultimately ruled for Trump in the immunity case, a decision that bolstered his election campaign. Since his win, the willingness of the court to afford the Trump administration what lawyers call “the presumption of regularity” is reflected in its decisions in several high-profile cases.

So far, the court has acted on six emergency applications, addressing issues such as deporting immigrants without due process, firing government workers and reductions in government spending in which the Trump administration has sought to block lower court rulings.

It has ruled for Trump in half of them, although each decision has been nuanced. The court has not included any language rebuking the administration for its conduct, although liberal justices have done so in separate opinions.

Leah Litman, a professor at the University of Michigan Law School, said her view is that at least some conservative justices are influenced by the oft-repeated claim that liberal critics are blinded by “Trump derangement syndrome.”

“They are coming into these cases, irrespective of Trump, with this mindset of conservative grievance,” she said, expounding on the theme of her forthcoming book, “Lawless.”

The court’s assessment of the risk Trump poses “has been horribly off base,” she added.

Asked for comment on the administration’s record at the Supreme Court so far, a Justice Department spokesman said it is “equipped with brilliant and highly qualified attorneys to defend President Trump’s agenda and uphold the rule of law.”

The administration has claimed at least some form of victory even in cases it has lost, such as the 9-0 decision on Thursday that said the government has to “facilitate” the release of Kilmar Abrego Garcia, a man who was wrongly deported to El Salvador.

In doing so, the court also allowed a deadline for Abrego Garcia to be returned to U.S. to expire, and it also warned against unconstitutional impositions on the president’s power to conduct foreign policy.

The Justice Department’s public response was to say that the court had dealt a blow to “activist judges.” White House deputy chief of staff Stephen Miller echoed that view in a post on X, saying that the justices had “rejected the lower court.”

In the immediate aftermath of the decision, government lawyers have already objected to a district judge’s request for further information about what steps it is taking to retrieve Abrego Garcia.

The most high-profile win for Trump was in another deportation case, when the court on Monday gave a boost to the administration’s effort to use a wartime law called the Alien Enemies Act to deport Venezuelans whom officials accuse of being gang members.

Although the court said in the 5-4 decision that such immigrants are entitled to due process before they can be deported, some commentators were still shocked that the court’s majority did not appear to view Trump’s actions as bordering on lawless — not least liberal Justice Sonia Sotomayor, who wrote a scathing dissent.

“The government’s conduct in this litigation poses an extraordinary threat to the rule of law,” she wrote.

In addition to the many legal issues the case raised, there were also claims that the government had effectively defied a judge’s order to return planes carrying immigrants out of the country.

Trump and his allies have harshly criticized Washington-based U.S. District Judge James Boasberg, a friend of Justice Brett Kavanaugh, and called for his impeachment. That prompted Chief Justice John Roberts to issue a rare public statement pushing back on the rhetoric.

In both deportation cases, as well as an earlier decision involving claims that the U.S. Agency for International Development had failed to pay money it owed to contractors, the court’s decisions — whether Trump won or lost — included implicit rebukes of district court judges that appear to give at least some credence to the Trump administration’s criticisms.

The fact the court has granted some of Trump’s requests “in a sense throw[s] the lower courts under the bus,” said Carolyn Shapiro, a professor at Chicago-Kent College of Law.

Lower court judges are “taking these cases seriously” and not always ruling for Trump, she added, but even when there are valid concerns about the administration running roughshod over the rule of law, the Supreme Court majority seems to see it differently.

“They are looking for reasons not to actually engage with the lawlessness of the administration,” she said.

On the other hand, J. Michael Luttig, a former conservative judge and frequent Trump critic, said that in the most recent decision in the Abrego Garcia case, the court had fired a warning shot in the direction of the administration.

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