The thing that worries us about the Supreme Court
Plus, join us on July 10th in Washington, DC
A little over a week ago, the Supreme Court weighed in for the first time on litigation challenging the Trump administration's attempts to limit birthright citizenship in a case known as Trump v. CASA. Rather than rein in the administration, the majority chose to punt on the substantive question and instead criticize the lower courts who stepped in to stop this blatantly unconstitutional order.
The legal implications of the SCOTUS majority’s decision to curtail so-called “universal injunctions” — court orders that halt a policy nationwide — are extremely complicated and somewhat uncertain. We do not know exactly how this case will play out across our legal system. (To be clear, this ruling does not mean courts can no longer enforce the law against an autocratic White House. It just complicates their path to doing so.)
But the overall direction is straightforward. The Supreme Court has given even more power to Donald Trump — and to itself — at the expense of lower courts.
As legal scholar Kate Shaw writes in The New York Times, the Court knows what it is doing here: ‘A culture of disdain’: The Supreme Court’s actions speak louder than its words (gift link).
The court already commands outsize power within our constitutional order; this decision demonstrates a new degree of imperiousness, seeming to co-sign the Trump administration’s contempt for the lower courts while announcing that its own edicts will continue to command obedience and respect.
The decision by the court’s conservative majority offers yet more evidence for the transformation of the Supreme Court. Though often cloaked in a language of neutrality and humility, the conservative majority’s actions — in the critical discretionary choices these justices have made about what cases to take, when to intervene and what interpretive methods to use — speak more clearly than its language about the court’s conception of its role, which is neither neutral nor humble.
[Read the whole piece.]
The big thing that worries us going forward: Whether the administration uses the new limitations on lower courts as cover to disobey their rulings in a more systematic way.
“Legalistic noncompliance” is a growing threat
Legal scholars Leah Litman and Daniel Deacon have documented a clear pattern in this administration: It often uses the language and procedures of the law as cover, pretending to obey the courts on paper while, in reality, doing the opposite. They call this “legalistic noncompliance.”
The administration obfuscating, disrespecting, and disregarding courts has been a pattern across dozens of cases since January. But in many ways, CASA makes the threat much worse.
Two reasons:
First, there’s a practical challenge of multiplying court decisions. By directing district courts to issue narrower forms of relief, we are likely to see more of a patchwork of injunctions that create opportunities for gamesmanship. Think of it as a “Where’s Waldo” but for noncompliance. When there’s one big case governing the whole country, it’s going to be glaringly obvious when, in the reported words of Trump loyalist and judicial nominee Emil Bove, the administration decides to say “‘fuck you’ and ignore any such order.”
But if there’s several or even dozens of related cases with different details and rulings?
The administration still, legally, has to comply with all those court orders. Choosing to selectively ignore some judges — or to ignore lower court judges because you plan to appeal to the Supreme Court— is non-compliance. Full stop. But the thicket of proceedings makes that disobedience easier for them to disguise.
We’ve seen exactly this sort of gamesmanship in the Alien Enemies Act (AEA) cases. As lower-court judges around the country began to issue orders barring the administration from deporting people on the basis of the AEA this spring, the administration responded by moving detainees to Bluebonnet, Texas — where they knew any habeas petitions would land before a conservative Trump appointee. Initially, this paid off — the Texas judge ruled that deportations could proceed (until the Supreme Court intervened).
Second, CASA continues a dangerous trend of taking the power to limit executive overreach away from the lower courts and retaining it only for themselves, so that this Supreme Court is the sole arbiter of the balance of our separation of powers.
In CASA, by not even hinting at how constitutionally out of bounds the underlying executive order limiting birthright citizenship is, the majority signaled that it is not particularly concerned about the Trump administration’s cavalier approach to violating the constitution. In fact, it gave the opposite impression: that the six conservative justices are more worried about lower court judges who might seek to constrain the executive branch’s violations of the law than the violations themselves.
That’s a very risky impression to give, at least from the point of view of a constrained, constitutional executive. Worse still, it builds off of another ruling last week where the Court gave the administration a pass on its efforts to deport migrants without due process to third-party countries. Per law professor Steve Vladeck:
[The third-party country case] is one of the most stark examples to date of the Trump administration overtly defying rulings by a federal district judge. Indeed, it did so twice in this case. For the Court to not only grant emergency relief in this case, but to offer nary a word of explanation either in criticism of the government’s behavior, or in defense of why it granted relief notwithstanding that behavior, is to invite—if not affirmatively enable—comparable defiance of future district court orders by the government. I would’ve thought that this was a message that this Supreme Court would be ill-inclined to send, even (if not especially) implicitly. But it’s impossible to imagine that the Trump administration will view it any other way.
Yikes. Expect the administration to respond with even more defiant language — and even additional noncompliance — towards lower court rulings.
Indeed, they may already be taking the hint. The president called the CASA decision a “GIANT WIN” and implied that it validated his patently unconstitutional approach to birthright citizenship. Of course, that’s not at all what the ruling actually did. The Supreme Court explicitly denied that it was ruling on the merits and it was only engaging on the procedural questions.
But that’s not the signal that was sent. Or, apparently, received.
The response: Vigilance against noncompliance
So what do we do about it?
There are many important and longer-term strategies, from restoring commitment to the rule of law through the judiciary to rebuilding Congress as a check on both other branches to overcoming authoritarianism politically, and not just legally.
But in the short term, focus on noncompliance. Because the Supreme Court majority appears unconcerned by the administration ignoring court orders, the rest of us — civil society, the media, and the public — need to fill in the gap.
Court defiance is extremely unpopular. A recent NBC news poll found that 81 percent of Americans believe the president has to follow court rulings, including a majority of Trump supporters.
That’s why the administration is, to date, hiding noncompliance in the legal weeds. And why Trump is likely to continue to do so in the future, even after CASA and the third-country deportations case.
So it’s up to all of us to monitor legal lines even more carefully now. If we can build a cross-ideological and cross-sectoral effort to watch for noncompliance — and raise a storm of criticism, outrage, and protest if those in power defy the courts — we can help keep the administration in check even when the Supreme Court fails to do so.
Join us in-person to stand up for the rule of law
Are you — or could you be — in Washington, DC on Thursday?
Join us and the patriotic folks at Principles First at the National Press Club for an evening of good food, great company, and engaging discussion about threats to the rule of law, the independent judiciary, and the legal profession. We’ll be joined by an all-star group of legal luminaries with a focus on practical strategies to stand up for the courts and the rule of law. Tickets are free but limited. Join us.
FCC extortion and a possible bribe worth much more than $16 million
On Tuesday, Paramount announced that they would settle Trump’s baseless lawsuit against 60 Minutes for $16 million dollars.
This isn’t just anticipatory obedience, another corporate actor obeying in advance. It’s even worse. Paramount seemed to believe they were being extorted by Trump loyalists at the Federal Communications Commission (FCC), which has slow-walked approving a proposed corporate merger while conducting an “investigation” of CBS and 60 Minutes. Paramount isn’t unreasonable in thinking this was what was happening. Trump’s allies on the FCC did the same thing to Verizon several months ago, holding up a multibillion-dollar merger until the telecom giant capitulated to the administration’s demands about DEI.
In other words, this “settlement” of a baseless lawsuit looks a heck of a lot like payment of protection money against the federal government. (Lawmakers at the state and federal level seem to agree.)
And the alleged “bribe” at issue here may be worth a lot more than $16 million. Trump filed this suit (and the FCC turned the screws on Paramount) likely not just for the payoff itself, but also for the spectacle of submission. To extract what looks to be an implicit promise of fealty and to send a shot across the bow of other news outlets. And indeed, Fox News reports that Trump expects a lot more out of this settlement than just $16 million from Paramount. He expects CBS to air advertisements and public service announcements “in support of conservative causes” and to change its editorial practices to release full unedited transcripts of interviews with presidential candidates — something people involved in the settlement call the “Trump rule.”
But this also isn’t just about Paramount and CBS. After all, if they can bring the nation’s top TV news program to its knees, they can do the same for others. At least, that’s what they want journalists to think.
Keep a close eye on CBS and other corporate-owned outlets for further self-censorship and a chilling effect on criticism of the White House. Right now, things don’t look good, at least for 60 Minutes. Keep fighting censorship while you still can. Here’s our piece from last week on how.
Read more: The new dark age of censorship.
What else we’re tracking:
Speaking of events in Washington, DC, the second annual “Liberalism for the 21st Century” conference (that’s liberalism in the classical sense) will be at the Watergate Hotel on August 14th and 15th. It’s an essential gathering for the pro-democracy movement.
The Justice Department is exploring using criminal charges against state and local elections officials, The New York Times reports. If the administration follows through, it could pose a major threat to free and fair elections in the future.
One of the most chilling news story ledes of the decade: “A former F.B.I. agent who was charged with encouraging the mob that stormed the Capitol on Jan. 6, 2021, to kill police officers has been named as an adviser to the Justice Department task force that President Trump established to seek retribution against his political enemies.”
NPR reports that the administration has, “for the first time ever, built a searchable national citizenship data system.” (Read more on why this is so dangerous here.)
Lawyers for Kilmar Ábrego García revealed his horrific “first-hand account of torture and mistreatment at CECOT,” the notorious prison camp in El Salvador to which he and others were sent. Remember: The cruelty is central to the authoritarian playbook.
What you can do to help:
A summer camp call from Anna Dorman:
The Trump administration is leaving schools and summer camps across the country in a lurch by refusing to disperse more than $6 billion in funds appropriated by Congress just four months ago. Every state in the country is entitled to at least $25 million in funding from impacted programs.
See how much funding is being withheld in your state here.
The confusion is already widespread. The Boys and Girls Clubs of America have announced that summer camps may end mid-summer if funding isn’t restored. After-school programs are already closing. School districts and teachers are left with just a few weeks to figure out how to provide services that are required to by law, but without the funding to do so.
Yes, this is likely illegal. The President does not have the power to seize or refuse to spend funds appropriated by Congress. (More on that here.) Heck, Trump signed the bill allocating the money his administration is now holding hostage.
Once again the administration is trying to strongarm the power of the purse away from Congress as part of a broader power grab. (Read about that here and here.)
It’s up to all of us to stand up for our kids and our democracy. Join the fight by:
One, making sure your friends and family know this is happening. There is a lot going on, it’s summer, no one wants to read the news. But this is important and you’re the most trusted messenger to your loved ones and community. Make sure they know that funding for our kids is being illegally held hostage.
Two, calling your elected officials with specific facts about what’s being cut in your state and district. Few things are a more effective use of 5 minutes. Tell them you care about these programs and you oppose these attacks on our kids and our country. Find your representatives here, senators here, and local elected officials here.
 | A guest post by
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Sorry for being petty, but Ben, in your intro I think you meant FLOUT, not FLAUNT.
This was super helpful. Made the issues really clear. Thank you!