The Supreme Court’s Stealthy Enablement of Presidential Power

The Supreme Court has long been seen as a bulwark against executive overreach, but beneath recent decisions lies a disturbing trend: the court’s willingness to enable presidential power at the expense of democratic norms and the rule of law.

Consider Louisiana v. Calais, where the Supreme Court gutted the Voting Rights Act by limiting the circumstances under which states could be held accountable for intentional racial discrimination in redistricting. The lower courts had found that Alabama’s electoral map was drawn with a clear intent to disenfranchise African American voters, but the Supreme Court effectively gave the state a free pass, citing a lack of “sufficient presumption of regularity” and deference to the state legislature.

This decision is part of a broader pattern. As Erwin Chemerinsky, dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley, noted in conversation with Dahlia Lithwick on Amicus, the Supreme Court has been using tactics such as manipulating standing rules to support the Trump administration’s agenda.

What’s striking about these decisions is not just their content but also their form. The court often ignores or disregards clear precedents, effectively rewriting the rules of the road to suit the president’s whims. This is not simply a matter of “judicial activism” but rather a deliberate attempt by the court to undermine democratic norms and empower the executive branch.

The implications of this trend are far-reaching. As Chemerinsky noted, when the Supreme Court manipulates standing rules or declares emergencies at will, it effectively gives the president a blank check to act with impunity. This allows Donald Trump to build his ballroom or take over mail-in elections without consequence, and it sets a precedent for future presidents.

The Roots of Judicial Conservatism

The current supermajority on the Supreme Court is comprised of justices who are “very conservative” and “govern in a very conservative direction,” as Chemerinsky pointed out. This has led to a series of decisions that have effectively rewritten the rules of the road to suit the president’s agenda.

Many of these justices were nominated during times of great partisan polarization and gridlock, which may have contributed to their willingness to support the Trump administration’s agenda. As Chemerinsky noted, “When you have a very conservative president governing in a very conservative direction with six very conservative justices… it’s not hard to see why they would want to support what he’s doing.”

The Cost of Judicial Enablement

The cost of this trend is high. When the Supreme Court enables presidential power at the expense of democratic norms and the rule of law, it undermines trust in institutions and erodes the very foundations of democracy. It also creates a slippery slope, where future presidents can exploit these precedents to further consolidate their own powers.

Consider Sierra Club v. Morton, where the Supreme Court established that plaintiffs who claim an aesthetic injury have a sufficient harm to get into court. This precedent has been repeatedly reaffirmed over the years and is essential for enforcing environmental laws. However, in the recent White House ballroom case, the Supreme Court disregarded this precedent, declaring that plaintiff Alison Hoagland’s claims were nothing more than “distaste” and “offense.”

The Future of Democracy Hangs in the Balance

As we move forward, it’s essential to watch closely how the Supreme Court continues to enable presidential power. Will they continue to manipulate standing rules and declare emergencies at will? Or will they begin to push back against this trend, reasserting democratic norms and the rule of law?

The stakes are high. As Chemerinsky noted, “The added bonus for the Roberts Six here is that we saw this last year in the first birthright citizenship case… conferring an enormous benefit that accrues to the high court.” If the Supreme Court continues down this path, it will not only undermine democratic norms but also create a permanent crisis of legitimacy.