Bonus 212: The Supreme Court is Not "Reining in" Executive Power
The Court's defenders claim the tariffs ruling is part of a trend in which the justices are reining in President Trump and (re-)empowering Congress. The full dataset is overwhelmingly to the contrary.
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After (and in light of) last Friday’s ruling in the tariffs cases, some of the Court’s most visible public supporters are using it to re-up a claim that the “real” goal of the Roberts Court is (I’m not kidding) to limit executive power. Writing in The Atlantic, for instance, Sarah Isgur (who, among other things, is now the editor of SCOTUSblog) asserted on Monday that “the larger project the Roberts Court seems to have undertaken is reining in the power of the presidency and making the president more politically accountable,” all, in Isgur’s words, to “force 535 people [i.e., Congress] to figure out a lasting solution to our problems, one that everyone can live with.”
To back up this claim, Isgur purports to offer data—about how often the Court has ruled against Trump (especially during his first term); about how often the Court isn’t dividing 6-3 (or, at least, not always having only the three Democratic appointees in dissent); and about how, focusing on one hyperspecific data point, the Court “unanimously rejected Trump’s attempt to change the outcome of the 2020 election.”
As I explain in detail below the fold, just about every part of this claim is specious. The implication that the Court has ruled against Trump more than other presidents depends upon entirely ignoring the emergency docket—not just over the last 13 months, but throughout the first Trump administration, when the justices also regularly put back into effect policies that lower courts had blocked (like the second iteration of the travel ban). Likewise, the claim that the Court isn’t typically dividing along ideological lines in most of these cases is belied, again, by the Court’s behavior on the emergency docket—where, during the most recent full term (OT2024), every single order with at least one dissent reflected the Court’s “normal” ideological divisions, including 15 different rulings on emergency applications from which the three Democratic appointees were the lone public dissenters. And even the throwaway line about the 2020 election both misstates the vote count in Texas v. Pennsylvania (Justices Thomas and Alito dissented from the denial of leave to file); and implies that Trump himself had been the moving party (he wasn’t).
It is true, as the tariffs decision drives home, that the Court is not ruling for Trump in every single case. It is also true (again, as the tariffs decision demonstrates) that the Court isn’t dividing into its “normal” 6-3 ideological alignment in every single high-profile, politically charged dispute. And it is undeniably true that the Court has taken steps to dramatically rein in the authority of administrative agencies. But none of these points actually prove the thesis—and the quantitative and qualitative data to the contrary is completely overwhelming.
This Court, far more than any of its predecessors, has embraced expansive readings of the President’s inherent and indefeasible constitutional authority that both directly and indirectly have redounded to the short- and long-term detriment of Congress. And even when it hasn’t formally embraced executive power, it has acted—over and over and over and over again—to enable its exercise, again, typically at the expense of Congress. That some of the rulings reflecting this trend aren’t 6-3, and that sometimes the Court still rules against Trump, is persuasive evidence only that there are some lines that even this Court (most of it, anyway) won’t cross.
For those who are not paid subscribers, we’ll be back (no later than) Monday with our regular coverage of the Supreme Court. For those who are, please read on.
