Over the past few years, the U.S. Supreme Court has elevated the rights of some and subjugated the rights of others.
Two of the primary beneficiaries of the court’s rulings have been the Supreme Court itself and the presidency of the United States. Those who have seen their rights reduced include:
- Women with the 2022 decision in the Dobbs v. Jackson Women’s Health Organization case, which eliminated the constitutional right to an abortion that was created with the 1973 ruling in Roe v. Wade.
- Federal government agencies in 2024 with the overturning of the 1984 Chevron v. Natural Resources Defense Council decision, which required a court to uphold an agency’s interpretation of a statute or regulation as long as it was reasonable.
- Lower federal courts this year with the ruling in Trump v. CASA, which prohibits federal district judges from issuing nationwide injunctions in cases they are handling.
The Right of the Supreme Court to Rule
The issue at the center of the Trump v. CASA case was President Trump’s attempt to use an executive order to restrict birthright citizenship, which is protected under the Fourteenth Amendment to the U.S. Constitution. The birthright citizenship issue was not specifically addressed by the Supreme Court in this case.
What the Court ruled instead was that no federal district court judge had the authority to issue “universal injunctions” applying across the U.S. The Court did provide some exceptions to this ruling. The most notable one was that if the case in a federal district court was a class action suit, the judge could consider issuing a universal injunction.
In spite of the exceptions, the bottom line of the CASA ruling was that it centralized and brought more power up to the Supreme Court. The Editorial Board of the Washington Post noted this, writing:
The bigger picture, though, is that the justices have now reserved to themselves alone the ability to issue nationwide injunctions. This will make it easier for the president and his executive branch officials to violate even black-letter constitutional rights as the country waits for the high court to tell them to stop.
This seizing of power is nothing new for the Supreme Court. As we ourselves wrote in 2023 after looking at earlier actions by the Court,
To sum it up, by exercising and expanding its unregulated decision-making authority in the light and in the shadows, the Supreme Court is emerging as by far the most powerful branch of the federal government.
… the Supreme Court has become too powerful. It is accountable to no one.
The Supreme Court is not a representative body. It is not a democratic body. But it is the body that may have the ultimate and final word on many of the most critical issues of our times.
To illustrate the impact of the Supreme Court’s consolidation of power from the federal district courts, consider the following. There are 94 district courts, with at least one court in each state, and there are 677 authorized judges in those courts. Now some of the authority of those courts and judges will be moved to a Court located in Washington, D.C. with only nine judges.
Consider also that the use of nationwide injunctions has increased significantly in this century.
Nationwide injunction began being used in the 1960’s. They were employed sparingly, with only one to two injunctions per year until the Obama administration.
There is no definitive source on the number of these injunctions. It is reported, however, that there were 19 to 20 nationwide injunctions during the Obama administration; 55 in the first three-plus years of the first Trump administration; 14 in the first three years of the Biden Administration. And according to the Trump White House, 40 nationwide injunctions had been issued in response to Trump executive orders during the first five months of his second administration.
These nationwide injunctions provide a tool for curbing unbridled presidential executive power deployed in issuing executive orders. Placing the responsibility for managing the issuance of these injunctions solely in the hands of the Supreme Court, which is controlled today by six GOP leaning justices, is not a formula for fair and balanced judicial decision-making or placing appropriate constraints on the President.
The Right of the President to Rule
Don’t take our word for that. Take Donald Trump’s. On June 27, shortly after the Supreme Court issued its ruling, the White House newsletter published an article, quoting President Trump as follows:
The Supreme Court has delivered a monumental victory for the Constitution, the separation of powers, and the RULE OF LAW in striking down the excessive use of nationwide injunctions … I was elected on a historic mandate, but in recent months, we’ve seen a handful of radical left judges effectively try to overrule the rightful powers of the president to stop the American people from getting the policies that they voted for in record numbers. It was a grave threat to democracy.
In a press conference, Trump thanked Justice Amy Coney Barrett, who wrote the opinion in this case, and Chief Justice John Roberts. Trump’s thanks to the Chief Justice may not have been just because of the resolution of this case.
That’s the perspective that Peter M. Shane of the New York University School of Law provides in his article for The Atlantic, which he begins by stating, “No one on the Supreme Court has gone further to enable Donald Trump’s extreme exercise of presidential power than the chief justice of the United States, John Roberts.”
Later in his piece, Shane writes,
What America is witnessing is a remaking of the American presidency into something closer to a dictatorship. Trump is enacting this change and taking advantage of its possibilities, but he is not the inventor of its claim to constitutional legitimacy. That project is the work of John Roberts.
Because of the work of Roberts and his judicial allies on the Supreme Court, Trump proclaimed, in his press conference after the CASA ruling at the end of June, “Thanks to this decision, we can now move promptly to proceed with numerous policies that have been enjoined on a nationwide basis.”
Those policies were promulgated through 196 executive orders, as of September 1. They cover a broad range of issues, ranging from immigration to higher education and climate change control. With its CASA decision, it now appears that the conservative majority in the Supreme Court is willing to commit to being Trump’s unnamed partner in getting those orders implemented with little to no lower-level judicial interference.
This decision of the conservative majority in 2025 reaffirmed the commitment it made in 2024 with its historic decision in the case of Trump v. United States when it granted complete and total immunity for the official acts of a president. In her dissenting opinion in that case, Justice Sonia Sotomayor declared:
The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
With fear for our democracy, I dissent.
If Justice Sotomayor was fearful for our democracy in 2024 before Donald Trump returned to office in 2025, she must be apoplectic now that he serves, in her words, as “a king above the law.”
In his new reign as a ruler, with concurrence of the court’s majority and emboldened by the Project 2025 presidential transition plan, President Trump is moving forward toward a virtually unilateral presidency. Charlie Savage, in his New York Times article written after the CASA decision, describes the expansion of power during Trump’s current tenure, in part, as follows:
The administration has steamrolled internal executive branch checks, including firing inspectors general and sidelining the Justice Department’s Office of Legal Counsel, which traditionally set guardrails for proposed policies and executive orders.
And Congress, under the control of Mr. Trump’s fellow Republicans, has done little to defend its constitutional role against his encroachments. This includes unilaterally dismantling agencies Congress had said shall exist as a matter of law, firing civil servants in defiance of statutory limits, and refusing to spend funds that lawmakers had authorized and appropriated.
Trump is aided and abetted by the Supreme Court in his authoritative use of the unified executive theory. As Thomas Edsall writes in his excellent New York Times article, quoting several legal scholars on this alliance between Trump and the court:
The court’s conservative majority appears to have adopted what is known as the “unitary executive theory,” which amounts to the empowerment of the president as the chief executive officer of the executive branch of government — as a chief executive sometimes would be in the private sector, as opposed to the top official of an executive branch fulfilling mandates specifically financed and authorized by Congress.
In conclusion, as noted at the outset of this piece, as early as 2023, if not before, the Supreme Court was emerging as the most powerful branch of the federal government
In 2025, with the Congress controlled by the Trump administration and the Supreme Court collaborating with the Trump administration, it may not be an overstatement to say there may no longer be three equal branches of government. Today, there may only be one branch. It might be labeled the unified branch of the Supreme Rulers.
This unified branch will not bring unity to our nation, nor be healthy for our democracy. Because of this, as we wrote in May, there will be a need for an American Renewal Plan.
Part of that plan must be directed at restoring the three equal branches of government. Those branches have helped facilitate the growth and progress of this great nation for nearly 250 years.
They have ensured that this democratic republic has not been run by or for supreme rulers in the past. Those three branches need to be there properly positioned and staffed in order to do the same in the future.