Is the Supreme Court Fed Up With Trump?
Last week, the Supreme Court issued its most important and authoritative ruling to date constraining the Trump administration’s use of executive power. Even more significantly, the vote was 6-3, with Justices Amy Coney Barrett and Brett Kavanaugh joining Chief Justice John Roberts and the Court’s three liberals to hold that Trump’s federalizing of the National Guard in and around Chicago was illegal.
A federal district court had entered a temporary restraining order barring the deployment of the Guard in Illinois. The U.S. Court of Appeals for the Seventh Circuit then permitted the Guard to remain federalized but maintained the prohibition on their deployment. President Trump sought emergency relief from the Supreme Court.
Technically, the Court’s action last week was a provisional decision refusing to set aside the rulings blocking the deployment. But it was clear that when the Court gets around to its own definitive ruling later in the term, it will hold that Trump lacks the power to federalize the Guard for law enforcement purposes. The Court cited the Posse Comitatus Act of 1878, which explicitly prohibits the use of the military for civilian law enforcement purposes.
Georgetown University law professor Steve Vladeck, one of the most astute commentators on the Court, wrote, “The decision is, without question, the most significant setback for the Trump administration at the Supreme Court at least since the justices repudiated its effort to use the Alien Enemies Act of 1798 for summary, mass removals back in April.”
Since other federal district courts have blocked similar illegal uses of the National Guard, the Court’s action implicitly applies to them. And despite threats that Trump might defy the Supreme Court, on New Year’s Day Trump meekly announced that he would stand down his attempt to move the Guard into Chicago, while pulling remaining troops out of Portland and L.A., where lower courts have enjoined their deployment.
The action is doubly significant because it suggests that even this Supreme Court, which has repeatedly ducked opportunities to block Trump’s dictatorial claims to executive power, is finally getting weary of Trump’s abuses. On New Year’s Eve, Chief Justice Roberts released an annual Report on the Federal Judiciary, obliquely but unmistakably criticizing threats to our independent courts and signaling Trump to back off in other ways.
He began by quoting Thomas Paine, pointedly noting that Paine was a “recent immigrant.” He segued from Paine to the Declaration of Independence, adding that “The Declaration charged that George III ‘has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.’ The Constitution corrected this flaw, granting life tenure and salary protection to safeguard the independence of federal judges and ensure their ability to serve as a counter-majoritarian check on the political branches. This arrangement, now in place for 236 years, has served the country well.”
While simultaneously guarding the judiciary against some Democrats’ threats of adding term limits or more justices, Roberts seems to primarily be saying: No Kings. Reading between the lines, he seems to have had a bellyful of Trump.
The survival of American democracy will literally depend on whether the Supreme Court becomes more assertive in blocking executive excess. As I’ve written, there is no more important arena than the 2026 midterms, where Democrats are primed to win a wave election and take back at least one house of Congress, unless Trump and his state allies succeed in all manner of voter suppression.
Their success at nullifying the 2026 elections will depend in no small part on the resolve of the courts. The efforts of the Trump Justice Department to demand voter files from the states, so that the DOJ can engage in bogus purges, has been blocked by lower courts, but sooner or later the Supreme Court will have to get engaged.
There are 368 active cases where litigation has challenged administration actions in the lower courts, and 149 cases where courts have enjoined illegal executive action. In some of these cases, the Supreme Court has relied on its “shadow docket” to grant the administration temporary relief from lower-court orders. In other cases, like the Illinois ruling on the use of the National Guard, the high court has let lower-court prohibitions stand.
There are other cases out there where the Court has the potential to roll back executive power, particularly with respect to the use of emergency laws for “Liberation Day” tariffs. The Trump administration is already scrambling to find other authorities for its tariffs, but circumscribing the emergency laws is useful in a variety of contexts to prevent something closer to a military dictatorship.
Eventually, the Supreme Court will need to make its own stand, and during the current term. Let’s hope that Trump’s abuses have worn out his welcome even with the Roberts Court.
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