How Trump Lost the Courts

When the history of the narrow survival of American democracy is written, the renewed independence of the judiciary will be a big part of the story. Trump himself gets a lot of the credit. His plain contempt for court rulings and the rule of law has awakened the self-respect of federal judges, including the Supreme Court.

This took some doing. Chief Justice John Roberts started out all too eager to be Trump’s enabler. Not only was he a big fan of the unitary executive theory. His most disgraceful ruling, in the well-named July 2024 ruling Trump v. United States, basically insulated Trump from criminal prosecution, validating Trump’s infamous comment that he could shoot someone in the middle of Fifth Avenue and not lose any voters. The sense that Roberts was his rubber stamp emboldened Trump’s moves to govern by decree.

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But even John Roberts has to look at himself in the mirror. Judging by Roberts’s ever bolder decisions excoriating Trump’s overreach, and the fact that Trump has now lost key decisions by 3-6 margins, Trump has managed to squander a Court majority that remains 6-3 Republican, three of whom—Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett—were appointed by Trump himself.

If you follow poker, you know the line about the folly of drawing to a inside straight. The odds are about 10-to-1 against your drawing the right card. To continue the poker metaphor, what Trump has done with Republican judges is to fold a straight flush.

On February 20, writing for a 6-3 majority decision overturning Trump’s claims that he had the right to impose tariffs at will and on whim, Roberts ridiculed Trump’s contention that he was acting because of an economic emergency and called out Trump’s crazy quilt of tariff actions. Roberts wrote:

One month after imposing the 10% drug trafficking tariffs on Chinese goods, he increased the rate to 20% … Less than a week after imposing the reciprocal tariffs, the President increased the rate on Chinese goods from 34% to 84%. The very next day, he increased the rate further still, to 125%.

This is the sort of blunt scorn usually found only in outraged dissents. Until recently, the Chief has been far more polite and circumspect. But Roberts has had a bellyful of Trump.

The high court, also by a 6-3 vote, has overruled Trump’s attempts to invoke the Insurrection Act to federalize state National Guard troops, and is very likely to reject Trump’s efforts to overturn birthright citizenship, also by 6-3 or even 7-2. Oral arguments suggest no sympathy for Trump’s contention that he can fire Federal Reserve governors, and the likelihood of another 6-3 ruling against Trump.

The cascade of decisions by district and circuit court judges have been even bolder and more incensed at the contemptuous actions of Trump and his minions in trying to circumvent or slow-walk responses to clear court orders.

Lately, district court judges have broken new ground in ordering the administration to reopen and rehire terminated staffers at the Voice of America and the Consumer Financial Protection Bureau; to release blocked funds for the Hudson River Gateway Tunnel; to report all cases to the court where grand juries have refused to approve indictments sought by the Justice Department; and a good deal more.

Last Friday, Chief U.S. District Judge James Boasberg blocked the Justice Department from subpoenaing the Federal Reserve and its chair Jerome Powell, and criticized the Trumped-up investigation into Powell’s Fed office renovation “as a clear effort to pressure Powell and his colleagues to lower interest rates.”

Federal judges have become more aggressive in threatening to hold noncompliant Trump officials in contempt. For the most part, Trump aides have complied.

This record also provides some reassurance that the courts will be there when Trump attempts various maneuvers to undermine the right to vote and to have every vote counted. (One exception to this encouraging trend is the pending case of Louisiana v. Callais, on whether the deliberate creation of majority-Black congressional districts is unconstitutional racial gerrymandering. If the Court rules as expected, it could cost Black House Democrats as many as 18 seats, though probably not in time for the 2026 election.)

The best part of Trump’s judicial self-destruction is that every time he loses a key decision, he has something personal and insulting to say about Roberts and other judges. At a news conference the day the Supreme Court released its tariff opinion, Trump called the majority who had ruled against him a “disgrace to our nation” and said that his appointees who voted against him were “an embarrassment to their families.”

These tantrums only serve to embolden Roberts’s reluctant conclusion that Trump has to be contained and to stiffen the spines of other federal judges. This week, speaking at a forum in Houston, Roberts warned that “personally directed hostility” against federal judges had to stop. The constitutional Founders designed an independent judiciary to be beyond partisan retribution, and despite Trump their handiwork is holding.

The post How Trump Lost the Courts appeared first on The American Prospect.