John Roberts is about to face his biggest Trump problem yet: legal expert

As the Supreme Court heads into what Slate, legal analyst Mark Joseph Stern calls “Opinionpalooza,” the final stretch of the term may prove pivotal for both the court and Donald Trump’s presidency. On his podcast Amicus, Stern and Dahlia Lithwick argued that the familiar story of John Roberts as a restrained check on Trump is badly overstated, and that the conservative majority has repeatedly used both public rulings and secretive shadow docket actions to expand executive power, emboldening Trump while narrowing the court’s own credibility.

Thus far, "where the ambitions of the MAGA wing of the court dovetail with Trump’s goals," Stern said, "Trumpism will run the table."

He fears that if the Supreme Court doesn't act to curb Trump's power trip, they might regret it.

"The Supreme Court keeps aligning with Donald Trump on this maximalist view of the imperial presidency, both in front of the curtain and behind it," Lithwick explained. For every case on the merits docket that gives Trump a big win in public, there are shadow docket cases that do the same in secret. It feels like any appearance of conflict between the president and the court is stage-managed, with lots of invisible wires we don’t always pay attention to."

Stern said it was one of the reasons that if the judges strike down the birthright citizenship case, no one should claim it as a victory.

"Because there are so many other cases where the court is absolutely making him a king," he said.

Lithwick explained that Roberts tends to make small moves at first until people are used to things, and then "it’s less of a surprise and almost looks like it flows logically from when the court did it in a lesser way."

So, the idea that Roberts is maintaining his independence is bunk, they agreed. Rather than acting as a neutral check on Trump, Roberts is portrayed as someone who has long pursued a project of reshaping American politics from the bench, and the piece suggests his recent urgency may reflect an awareness that time is running out to lock in those changes.

Meanwhile, the Court can ignore public transparency by using the shadow docket to decide its orders, Stern complained.

"The conservative supermajority issued all these shadow docket orders clearing the way for that to happen," he added. "Now it has happened; Trump’s takeover of the federal government is largely complete. So I just don’t think the court needs to issue nearly as many shadow docket orders as it did during that shock-and-awe campaign; it has already achieved its objectives."

He confessed he's particularly cynical about it.

"It’s less that the court has learned its lesson or become more solicitous toward lower court judges, and more that the court already accomplished a huge amount of what it wanted in terms of giving Trump what he sought. Trump came in and had expansive ideas about the scope of his executive power — impounding federal funds, firing executive officials, rewriting immigration laws," Stern said. "And by and large, the Supreme Court let him do it."

Lithwick said that when Trump doesn't get his way he throws a "tantrum." When their interests align, however, "the court goes full steam ahead."

"So, what the court keeps doing is not just reaffirming maximalist views of executive power for Trump, but reaffirming its own maximalist power to be the decider at the end of the day," she explained. "Does that put the lie to the whole story everyone wants to tell about John Roberts versus Donald Trump? And by giving Trump so much of what he wants so often—sometimes racing to do it on the shadow docket—does the court in fact embolden him in a way that imperils its own ability to someday say no to an important question in the future, because it’s squandering whatever authority it actually has to say no?"

The real problem will come when or if the Supreme Court puts its foot down, and Trump decides to ignore it. Stern said that Trump is always abides by their rulings, but is happy to defy lower courts. He wondered what would happen when Trump decides those days are over.

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