- “In early November, a conservative Supreme Court justice showed a cleareyed understanding of the threat that President Trump poses to the constitutional order.”
The New York Times Editorial Board issued a sweeping critique of the U.S. Supreme Court this week, warning that the justices are failing in what it described as their most important constitutional duty: restraining presidential overreach and preserving the balance of powers in the face of President Donald Trump’s second-term actions.
In an editorial published Dec. 6, the board argued that although lower federal courts have moved aggressively to block what it described as Trump’s unlawful power grabs, the Supreme Court has repeatedly intervened to allow those actions to proceed, often through emergency rulings with minimal explanation.
“In early November, a conservative Supreme Court justice showed a cleareyed understanding of the threat that President Trump poses to the constitutional order,” the editorial stated, pointing to Justice Neil Gorsuch’s comments during oral arguments in a case challenging tariffs Trump imposed by invoking emergency powers.
During that argument, Gorsuch warned that such unilateral authority could permanently tilt the constitutional balance. “What president’s ever going to give that power back?” he asked.
The editorial described Gorsuch’s remark as notable precisely because it remains so rare. His skepticism, the board wrote, “highlighted how little the majority has done to rein in a president who has challenged the nation’s laws, norms and balance of powers.”
The court has not yet ruled on the tariffs case, but the editorial framed it as one of several looming tests of whether the justices will meaningfully check Trump’s authority.
Another, the board said, will come when the court hears a challenge to Trump’s attempt to fire a member of the Federal Trade Commission, an action that directly conflicts with a 90-year-old Supreme Court precedent.
The court has also agreed to hear a challenge to Trump’s attempt to revoke birthright citizenship, which the editorial noted the 14th Amendment “explicitly protects.”
While the Supreme Court has hesitated, the board said, lower courts have acted decisively.
“Many lower courts have responded heroically to Mr. Trump’s ill-founded efforts to centralize power and weaken democracy,” the editorial stated.
District and appellate court judges have repeatedly blocked Trump administration efforts to cut off congressionally appropriated spending, dismantle departments created by Congress, fire agency leaders and deport people without due process.
“In many of those instances, however, the Supreme Court later overruled the lower courts, allowing Mr. Trump’s power grabs,” the board wrote. Those decisions have come “almost entirely on its emergency docket,” through rulings that are technically preliminary but “often last for at least a year or two,” frequently with “little or no explanation.”
According to the editorial, the court has “wholly denied only one of Mr. Trump’s 32 emergency petitions in his second term,” and, even in that case, the justices “effectively reversed themselves later.”
The editorial contrasted the court’s current posture with its record during Trump’s first term, when it regularly ruled against him. During his second term, the board said, “the six Republican-appointed justices have smoothed the path for Mr. Trump’s dangerous campaign to undermine the Constitution and our system of government.”
One explanation, the editorial suggested, is ideological. Several conservative justices have previously endorsed the unitary executive theory, which holds that Congress has limited authority to restrict presidential control over the executive branch. Justices Samuel Alito and Brett Kavanaugh were cited as proponents of that view.
“Taken to its limit, it holds that Congress is powerless to impose any conditions on how the president controls executive branch agencies,” the board wrote.
While acknowledging legitimate debates about government efficiency and accountability, the editorial warned that the court has embraced “a maximalist version of executive power that facilitates an unaccountable White House — one that, for instance, blows up boats without due process.”
The board said that approach “downplays the primary role that the founders assigned to Congress, making it the subject of Article I of the Constitution.”
The editorial also emphasized what it described as a striking inconsistency in the court’s approach to executive authority. During President Joe Biden’s administration, the justices blocked efforts to forgive student loans and manage the COVID-19 pandemic.
“Today,” the board wrote, “they are enabling a Republican president as he goes much further while relying on weaker rationales.”
Beyond doctrine, the editorial accused the court of ignoring clear evidence that the Trump administration has acted in bad faith.
Historically, courts have relied on what legal scholars call the “presumption of regularity,” which assumes that government officials act honestly and provide accurate reasons for their actions. “The Trump administration does not deserve this presumption,” the board said.
Lower court judges appointed by presidents of both parties have described Trump administration actions using unusually sharp language, characterizing them as “egregious,” “capricious,” “nonsensical,” “unconscionable,” “baseless,” “cringe-worthy,” “Kafkaesque,” “blatantly unconstitutional” and “a sham,” the editorial noted.
The board pointed to a ruling by Judge Karin Immergut, a Trump appointee to the U.S. District Court for the District of Oregon, who wrote that the administration’s stated reasons for deploying the National Guard in Portland were “untethered to the facts.”
Despite this record, the editorial argued, the Supreme Court has remained “blithely credulous of the administration.” As an example, it cited Justice Kavanaugh’s treatment of immigration enforcement challenges. Kavanaugh minimized the harm of wrongful stops by suggesting that people would be briefly questioned and then could “promptly go free.”
“That is often not the reality of the Trump administration’s immigration roundups,” the editorial said. Instead, the board described “military-style raids that terrify children and hold even citizens in custody for hours or days or even weeks.”
The editorial called what it described as the court’s “overarching mistake” its willingness to allow Trump to seize authority through legally dubious means. It highlighted a September decision in which the court allowed Trump to withhold $4 billion in foreign aid that Congress had ordered spent by the end of the month.
“In a single paragraph of explanation,” the board wrote, “the majority let the policy stand, citing a president’s authority to conduct foreign policy.” The editorial rejected that claim outright, stating that Trump’s impoundment of appropriated funds “is unconstitutional, full stop.”
Other rulings reflect the same pattern, the board argued. The conservative majority has permitted Trump to begin dismantling the Department of Education, even though “only Congress has the power to abolish an administrative agency,” and has allowed him to fire members of independent agencies such as the National Labor Relations Board without cause.
The editorial pointed to the historical record, noting that in 1911, Sen. Francis Newlands of Nevada said the Federal Trade Commission should be “independent of executive authority.” The Supreme Court affirmed that principle in its 1935 decision in Humphrey’s Executor v. United States.
Now, the editorial warned, the court may be poised to abandon that precedent. In a case scheduled to be heard this week, the justices asked the parties to prepare arguments on whether a federal court could prevent anyone’s removal from public office, including civil service employees.
“At best,” the board wrote, this could revive a patronage system “unsuitable to the work of modern government.” “At worst,” it added, it raises a chilling possibility identified by conservative columnist David French: that, combined with unfettered pardon power and expansive presidential immunity, the authority to fire any federal employee could allow a president to run the government “as a criminal enterprise.”
The editorial urged the justices to take a different path. “There are still plenty of chances for it to stand up for the American system of checks and balances,” the board wrote, outlining three priorities: treating facts as relevant, recognizing the difficulty of reclaiming lost congressional power and acting more quickly to block what it called Trump’s most blatant abuses.
Those include Trump’s attempt to end birthright citizenship, which the board described as “patently unconstitutional,” and his use of the Alien Enemies Act to deport Venezuelans who were later subjected to violence in a notorious El Salvador prison. The editorial cited Politico in reporting that Trump’s reinterpretation of immigration detention law has been rejected by all but eight of the 225 judges who have ruled on such cases.
With Congress largely inactive under Republican control, the board concluded, the burden of safeguarding democracy has shifted to the judiciary. “The stability of American democracy depends more than it should on the Supreme Court,” the editorial stated. “So far, it is failing to live up to its constitutional role.”
Still, the board noted, the term is in its early stages.
“We’re only in the first quarter of this term,” it wrote. “There’s a long way to go.”
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“In an editorial published Dec. 6, the board argued that although lower federal courts have moved aggressively to block what it described as Trump’s unlawful power grabs, the Supreme Court has repeatedly intervened to allow those actions to proceed, often through emergency rulings with minimal explanation.”
The lower courts have mostly ruled based on their politics and not the rule of law. The Supreme Court has had to correct their politically biased based decisions.
There, I FIFY.
Feels like screaming into the void. The Supreme Court has been compromised ever since the Citizens United ruling and the Democrats whiffing on every opportunity to push back is one of the main reasons Trump is having his way with the federal government.