The collision is coming.
Last Thursday, the Supreme Court held that a Federal District Court judge, Paula Xinis of Maryland, had “properly” ordered the Trump administration to “facilitate” the release of Kilmar Armando Abrego Garcia, a father raising three children, from El Salvador’s inhumane Terrorism Confinement Center, where the U.S. government admitted he had been sent by mistake.
The administration dispatched Abrego Garcia, who had lived in the United States under protected status since 2019, to the prison undeterred by a court order forbidding his removal to El Salvador. The Supreme Court’s order contained two directives. First, it advised the lower court to “clarify its directive” to the government. Second, it said the Trump administration “should be prepared to share what it can concerning the steps it has taken” as well as “the prospect of further steps” it can take to secure Abrego Garcia’s release.
In the days since, the Trump administration has come closer than any administration in my lifetime to directly defying the Supreme Court. It shared no meaningful information with the District Court and appears to be doing exactly nothing to secure Abrego Garcia’s release.
In fact, at an Oval Office meeting between Trump and Nayib Bukele, the president of El Salvador, Bukele seemed eager to keep Abrego Garcia. “Of course I’m not going to do it,” he told reporters, and he compared returning him to smuggling “a terrorist into the United States.”
Abrego Garcia, by the way, has not been convicted of any crime in the United States and there is no evidence that he’s a terrorist.
It should be noted as well that Trump lied to the American people about the Supreme Court’s order, claiming it was a unanimous victory when in reality the court decided against his administration, with no dissents.
Trump not only refused to ask Bukele to release Abrego Garcia, he raised the possibility of actually sending American citizens to one of Bukele’s prisons. “If it’s a homegrown criminal, I have no problem, no,” Trump said.
Make no mistake, the administration has inched right up to crossing a constitutional red line. The nation’s highest court, vested by the Constitution with “the judicial power of the United States,” has made its intentions clear, and the administration does not seem to care. And if the administration continues its defiance, including by potentially defying an even more direct and clear ruling from the nation’s highest court, then the country will face its greatest test to the rule of law since the Civil War.
How should the Supreme Court respond?
It should learn the lessons of its own past. The Supreme Court at its worst yields to the darkest spirits of the age. At its best, the Supreme Court defends America’s core constitutional values even in the face of tremendous resistance.
At multiple points in American history, the Supreme Court has been confronted with the worst injustices in American life and failed, completely, to uphold those core constitutional values.
In Dred Scott v. Sandford, it stripped Black Americans of citizenship, enhanced the power of slave states, and hastened the onset of the Civil War. In Plessy v. Ferguson, it denied the plain meaning of the 14th Amendment and empowered segregation by upholding “separate but equal” as the law of the South.
And in Korematsu v. United States it ratified the wholesale internment of innocent Japanese Americans during World War II.
In each case, the court was confronted with a clash between the plain meaning of the Constitution and public bigotry and hysteria. In each case, it abdicated its role as the guardian of the American Constitution.
But that’s not the whole story of the Supreme Court. Not even close.
When I look at the present moment, I’m reminded of another time when the court issued a ruling in the face of extreme political cultural and political pressure and chose not to cave — even though it knew that its order would be defied, and even though it knew that it could not compel the political branches of government to comply.
Brown v. Board of Education was the Supreme Court’s long-delayed answer to Plessy v. Ferguson. The justices were asked once again to overturn segregation as a violation of the 14th Amendment’s guarantee that all people in the United States will receive equal protection under the law, and this time they did not blink. They did not yield.
The court declared, unanimously and unequivocally, that school segregation violated the Constitution. And the next year, in 1955, it ordered states to desegregate with “all deliberate speed.”
We look back at Brown as one of the great moments in American constitutional history — when the country finally began living up to its high constitutional ideals. But we forget that the immediate response to Brown was open defiance, or “massive resistance,” in the words of Senator Harry Byrd of Virginia.
And what did “massive resistance” look like? It was a legal and political strategy designed to deploy all the tools of state power to defy the Supreme Court. It included state laws to punish any school that was desegregated. It included violent popular uprisings. It even included deploying the National Guard to block Black children from attending previously all-white public schools.
From the use of troops to try to block the “Little Rock Nine” from attending Little Rock Central High School in Arkansas in 1957, to the deadly Ole Miss Riots of 1962, to Gov. George Wallace of Alabama blocking two Black students from registering at the University of Alabama in June 1963, the campaign against Brown was one part political uprising and one part guerrilla war.
Governor Wallace had declared the rallying cry months earlier in his infamous inaugural address: “Segregation now, segregation tomorrow and segregation forever.”
In fact, desegregation wasn’t fully complete until 2016, when a school district in Cleveland, Miss., finally lost its decades-long fight to keep Black and white students apart.
During those years, we saw in plain view both the limits of Supreme Court authority and the power of its moral and constitutional witness.
When the Supreme Court issues an order, it has to depend on the political branches of government for enforcement. As Judge Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, told me in a recent interview, “We famously do not have the power of the Treasury. We don’t have the power of the sword. We don’t have the military to enforce our decisions.”
In short, if the political branches of government decide to defy the judiciary, there is little the court can do to enforce its judgments.
The Supreme Court’s ruling in Brown wasn’t sufficient to end segregation, but it was necessary to begin the process. And the court remained steadfast throughout the civil rights era, relentlessly attacking the Jim Crow regime — not just by striking down discriminatory laws, but also by preserving the free speech and free association rights of civil rights activists.
As John Lewis, a former congressman from Georgia and key leader of the civil rights movement, said, without freedom of speech and the right to dissent, “the civil rights movement would have been a bird without wings.”
In the United States, statements of constitutional principle also have genuine moral power. The Bill of Rights, after all, is rooted in the great moral declaration in the Declaration of Independence that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.”
As a result, the best Supreme Court decisions don’t just have legal force, they represent a moral indictment of rogue presidents and rogue governments.
Millions of Americans are desperate for a quick and effective response to Trump’s attacks on the Constitution. But the election foreclosed that possibility. The courts — even if they have the courage — lack the power to save America.
In this moment, think of the courts as a rear guard, capable of delaying constitutional collapse until the American people finally understand that the life and health of the Constitution is up to them. If they keep electing men like Trump or sycophants like those in his Congress of cowards, then we’ll lose our Republic.
But if a critical mass of Americans do wake up, then the court’s stand will be indispensable to justice and — critically — accountability. Every public official associated with Trump’s defiance of the courts (including his vice president, JD Vance) should be impeached, convicted and barred forever from holding public office.
I know that’s a fantastical vision in the present moment. In a closely divided country, impeachment and removal aren’t viable options, but supermajorities among Americans have existed before. The civil rights movement, empowered in part by the Supreme Court, attained a supermajority that changed America, and a movement to preserve the Constitution can be a supermajority again.
We can’t ask the Supreme Court to do more than it’s able to do, but it must do all that it can. The choices it will face may well be as stark as the choice between segregation and equality, or between internment and freedom.
The court’s past failures have destroyed lives and put our Republic in mortal danger. Its past courage has inspired revolutionary change. Unless Trump backs down, it will face the same choice the court faced in 1954 — yield in the face of enormous resistance or stand even when the politicians fail.
Some other things I did.
Speaking of the Supreme Court, my Sunday column focused on the court’s rulings last week. Trump lost, yet he claimed he won. What gives?
Justice Sonia Sotomayor was emphatic about the meaning of the court’s ruling: “To the extent the government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court.
This means that the Trump administration cannot repeat the stunt it pulled in March. It cannot hustle detainees onto a plane, fly them to El Salvador and then wash its hands of the matter by declaring that the detainees were now outside the jurisdiction of the court. An encore of that performance would directly defy the court.
In some ways, this ruling makes it harder to deport aliens under the Alien Enemies Act than would have been the case if the president had used conventional legal means. Every detainee is now entitled to his day in federal court, potentially flooding those courts with hundreds of petitions, each requiring individualized hearings with a right to appeal.
Each court also has the ability to declare the application of the Alien Enemies Act unconstitutional, thus beginning a legal process that could terminate Trump’s executive order once and for all.
From Trump’s perspective, that is not what winning looks like.
David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” You can follow him on Threads (@davidfrenchjag).
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