The relationship between the federal government’s executive and judicial branches in these early months of the second Trump administration is, in a word, fraught. The president outright ignores the decisions of federal courts in some instances, follows their orders in others, and increasingly relies on the Supreme Court to grant him unprecedented power.
This Supreme Court is, obviously, very conservative, but even now they don’t always rule the way Trump would like them to. They held that the Trump administration had to “facilitate” the return of Kilmar Abrego Garcia from El Salvador, even if that was somewhat vague. But even when he doesn’t win outright the conservative justices give him wide-ranging powers: in a case involving his attempt to end birthright citizenship, Trump celebrated a ruling that largely ignored that specific policy but did say that federal judges could no longer issue nationwide injunctions—with some limited exceptions.
Is this new, or just more of the same from the Roberts Court? It can be difficult to tell whether the Supreme Court is moving in a direction that would further empower Trump, if they’re basically doing what they’ve been doing for the last few years — at least since granting then-candidate Trump broad immunity for “official acts” a year ago.
Leah Litman, a professor of law at the University of Michigan and co-host of the Strict Scrutiny podcast, told Splinter that the Supreme Court seems to be taking Trump’s side more than it has in the past.
“I think things are getting worse than they were two years ago,” Litman said. “I think in the initial period of the second Trump administration they were somewhat hesitant and ruled against him in some cases. I think the pattern since then has been to give him a lot of what he wants and a lot of unjustified wins.”
Litman added that the Court seems emboldened right now with Republicans in control of Congress and the White House. She says they gave Trump some big wins last year—in the immunity case and in another where he was put back on the ballot after some states attempted to disqualify him—but now things are looking even better for Trump than some might have expected.
“They are insistent on treating Donald Trump as a normal president while giving him an ever-expanding set of powers,” Litman said. “They also seem totally willing to ignore the context in which they are issuing decisions, like in the birthright citizenship case.”
Trump is often treated as if he’s just another Republican president, whether it’s by the media or the courts, which is obviously not the case. Litman said the Supreme Court treating him this way ignores the unique threat that this administration represents. The Court seemed worried about its reputation and legitimacy not too long ago, when Chief Justice John Roberts was publicly defending their decisions, but they seem less concerned now.
“I think they are less concerned about their public perception right now,” Litman said. “By occasionally ruling against the Trump administration in these small, tepid ways, they garner an incredible amount of good publicity and good will. That allows them to seem less partisan than they are.”
When it comes down to it, she added, the six justices in the majority are “Republican elites,” and that’s how they behave. She said she believes they are “on board with a lot of Trump’s political project.”
When it comes to what we should be worried about looking forward, there are multiple cases already on the docket that Litman and other experts are watching. These cases cover everything from the future of the Voting Rights Act to a case focused on which immigrants qualify for asylum. However, she noted there could be some big cases that arise that we can’t predict yet.
“We don’t know what emergency shadow docket applications are going to make their way to the court,” Litman said. “We don’t know what other weird policies he’s going to create.”
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