What is wrong with them?
That’s the question a lot of people are asking in America—citizens and scholars, private lawyers and elected lawmakers, even plenty of lower court judges.
What is wrong with the justices of the Supreme Court—the six conservatives in particular—who over and over have just surrendered to the lawlessness and open contempt for the substance and spirit of our laws demonstrated by President Trump and his administration?
Trump now has a 16-case winning streak before the Court. Over the course of a few short months, the conservative justices have permitted:
the firing of thousands of federal employees by Trump, steamrolling civil service protections and ignoring strong separation-of-powers arguments;
the de facto end of birthright citizenship, which will now proceed piecemeal across the country, until some future case might (or might not) restore the clear command of the Fourteenth Amendment;
the removal of legal protections for more than a million immigrants;
deportations of hundreds of people to third countries, where they have no connection and where conditions are deplorable and the justice systems corrupt;
the destruction of the Department of Education and USAID, both created by acts of Congress;
and much more.
Most of these rulings have come on emergency appeals from Trump—with no written explanations issued by the majority on the Court. That’s shocking. Trump is concentrating power in himself like no president before him. And not a peep, for the most part, from the justices who are greenlighting all of it.
This judicial surrender to the wannabe autocrat in the White House comes after scores of lower court judges—appointed by Democrats and Republicans, liberals and conservatives—have forcefully tried to stop Trump’s obvious power-grab. But not Chief Justice Roberts. And not Justices Thomas, Alito, Gorsuch, Kavanaugh, or Barret.
Have they all gone MAGA? I don’t think so.
Clarence Thomas’s opinions, it seems, have been essentially purchased by the far right for years; and he’s long sought to vandalize the Court’s civil rights legacy from the last century. Samuel Alito is just a culture warrior pretending to be a judge. But Alito is said to detest Trump privately, and Thomas has seen seven presidents come and go now; he’s been on that personal crusade of his for decades (and on those private jets and huge yachts, too).
To be sure, there are wrongheaded doctrinal reasons for the abasement of the Supreme Court before Trump. In particular, a maximal version of the unitary executive theory now seems to be the foundation of how this Court looks at presidential power. That theory holds that the Constitution vests all executive power—for the most part unchecked, unbalanced by the coordinate and coequal branches of the government—in “a President of the United States.” The Court essentially adopted this theory last year in the notorious presidential immunity case of Trump v US.
But rather than slice and dice the legal theories driving the Court, I’d rather look at the people themselves. These justices. Why are they failing to meet this moment? Why are they failing us so?
The greatest thing American lawyers have ever done is Brown v Board of Education, the 1954 case in which a unanimous Supreme Court declared segregation in the public schools unconstitutional. They met that moment, those nine men. Who were they?
A former Governor of California. A former US Senator from Alabama. A former member of the Kentucky House of Representatives. A former law professor, top White House adviser, and founder of the ACLU. A former chairman of the Securities and Exchange Commission. A former Attorney General of the United States. A former US Senator from Ohio. Another former Attorney General of the United States. A former US Senator from Indiana.
A governor, three senators, two US attorney generals, a state representative, and one of the most prominent and influential public intellectuals of his time (Felix Frankfurter).
And today’s Court? They are nine lawyers who are overwhelmingly products of the federal courts, the federal appeals courts in particular. None have ever run for office. None have any extensive experience in state government and none (except for Justice Sonia Sotomayor, who was a New York County prosecutor) in the state courts. None served as a cabinet secretary leading one of the departments of the federal government. Eight went to Ivy League law schools, compared with four on the Court in 1954. (Justice Robert Jackson didn’t even have a law degree.)
The justices who decided Brown had lived rich, practical lives not just in the law, but in American politics and at the highest levels of government. They had campaigned for office, horse-traded for votes in Congress, organized bureaucracies for action. For them, the law was not an abstraction to be contemplated; they had written it, executed it, lived it.
And so when the great question of racial injustice in America came before them, they were ready to resolve it under law. Not law in the abstract, but law in the way it operates in the real world. They were statesmen, and they understood our country in the way that only statesmen (and now stateswomen) can. And they did their duty under the Constitution.
Today’s Supreme Court justices have been cloistered in the narrower chambers of our law. Judging has become a profession, less a matter of state, more a kind of highly specialized practice for the best and the brightest of our Ivy League law-school dweebs. The moment we are living in now seems too big for them.
Finally, there is a sinister ideology among the six conservative justices of the Roberts Court. It’s not MAGA, although it results in pro-MAGA rulings and decisions. With the exception of Barrett, the conservative justices all worked in subsidiary positions in the executive branch of the federal government. Their job was literally to defend the interests and powers of the president. To a man with a hammer, everything looks like a nail. Even Trump II.
We can’t count on this Court.