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Those who care about the Constitution are reeling. The president of the United States this morning suggested using “dangerous cities as training grounds for our military.” The indictment of former FBI Director James Comey looks politically motivated, flimsy, and indefensible. We rely on the courts to uphold the rule of law. But that guardrail is fragile too, as we are reminded especially next week with the start of the new Supreme Court term.
Monday marks two decades since John Roberts became chief justice, during which time public trust in the high court has plunged to record lows, according to polls. In many ways, these coming months will test what is left of the Court’s credibility. On presidential power, on voting rights, on campaign finance, and more, our democracy is on the line.
In Donald Trump’s first term, the Court often rebuffed his worst abuses, and it refused to overturn his defeat in 2020. It was a conservative court, not necessarily a MAGA court. This time seems different. Last year, Trump v. United States gave presidents vast new immunity from prosecution for illegal acts committed in office. The president is “the only person who alone composes a branch of government,” Roberts wrote approvingly as the Court swept away one of the most potent guardrails against abuse of presidential powers.
A few things stand out as the oral arguments will soon begin.
The first is that much of the practical damage has already been done. Today’s great constitutional issue is the bid to radically expand presidential power. Repeatedly, lower courts have stopped or blunted or slowed the power grab — rulings made by judges appointed by Republicans and Democrats.
But then Trump’s lawyers started rushing to the Supreme Court, where the justices whispered an epic constitutional shift. They used the newly famous “shadow docket.” Usually little or no explanation was offered, and the justices did not even sign their names. But they have sided with Trump 85 percent of the time, granting permission to fire senior appointees in violation of laws enacted by Congress, to begin dismantling the Department of Education without Congress’s assent, to summarily deport migrants to countries they are not from, to withhold billions in congressionally appropriated funds, to engage in racial profiling, and the list goes on.
This term, the justices will have no choice but to confront directly and publicly the big questions about presidential power. In November, they will hear arguments on whether Trump can unilaterally impose massive tariffs on worldwide trade, the centerpiece of his economic policy. Every lower court has ruled that Trump acted illegally, as the relevant statutes do not give him the power to unilaterally impose import taxes.
Conservative former federal judge Michael McConnell has called this “the most significant case on presidential power since the steel seizure case in 1952.” In Youngstown Sheet & Tube Co. v. Sawyer, a Court appointed entirely by Democratic presidents nevertheless rebuffed Democrat Harry Truman.
History will judge this Court, too.
Other major presidential power cases are imminent. In a series of shadow docket rulings, the justices signaled that they are open to overturning nearly a century of precedent barring presidents from firing commissioners of legally independent agencies. Even in radical shadow docket rulings on the firings, though, the justices seemed to carve an exception for the Federal Reserve. Will they let Trump fire Fed governor Lisa Cook? As of this writing, that question is awaiting a ruling (also on the shadow docket, of course). The nation’s role in the world economy may hinge on the result.
There are big decisions to be made on Congress’s power of the purse, whether presidents can deploy troops domestically for law enforcement in violation of long-standing law, and more.
Finally, ominously, this term will likely see the Court renew its own assault on democratic values and institutions. That passion predates Trump.
In 2010, the Court demolished critical campaign finance laws in Citizens United v. Federal Election Commission. In Rucho v. Common Cause in 2019, it refused to police partisan gerrymandering — thus allowing the partisan arms race that now threatens to tilt elections even further. In 2013, in Shelby County v. Holder, the justices gutted the most effective part of the Voting Rights Act, which required some states to ask the federal government’s permission before changing voting policies. Roberts reassured that we could still count on the law’s Section 2, which allowed after-the-fact lawsuits.
Now, on October 15, the Court will hear a case that calls into question the constitutionality of that very provision — and of the Voting Rights Act itself. Louisiana v. Callais comes out of an effort by Black voters to undo a racially discriminatory congressional map in Louisiana using Section 2 of the Voting Rights Act. The implications go deeper. As the Brennan Center’s friend-of-the-court brief pointed out, “Since the 1980s, Section 2 of the Voting Rights Act has played an indispensable role in improving representation on city councils, school boards, county commissions, and other local government bodies across the country. Its impact has been especially transformational in the South.”
Of course, the justices should uphold one of the nation’s most effective civil rights laws, a law whose constitutional validity had not been seriously questioned for over half a century. If the Court rules unwisely, it could close off political representation across much of the country.
What remains of our campaign finance laws isn’t safe, either. The justices decided it was time to consider striking down long-standing restrictions on coordination between campaigns and national political party committees. Even the pretense of meaningful campaign laws may be gone.
The Court has minimal accountability but vast power. This year, it has failed to use that power, so far, to stand up for the Constitution. Much is now on the line. Will checks and balances still hold?
Even to ask that question may reflect the triumph of hope over experience. But for now, I choose to hope the Court will do the right thing.
