We have just witnessed another example of the Supreme Court’s unshackling of the U.S. presidency. On Thursday morning the court issued a decision allowing the Trump administration to cancel Temporary Protected Status for hundreds of thousands of individuals from Haiti and Syria. The administration is now free to move forward with what immigrants’ rights advocates describe as the largest de-documentation in U.S. history.
In addition to its awful human toll, the decision allowing the T.P.S. terminations to go into effect highlights one of the more troubling mysteries of this era. Between the first and second Trump terms, why has the conservative majority of the Supreme Court become so much more accommodating of and deferential to this president? And, in particular, why has Chief Justice John Roberts proved so much less willing to call the administration out on its lies and challenge its motives — particularly since, according to virtually every metric, the second Trump administration has been far more extreme, and far more lawless, than the first?
It’s possible that the court fears that ruling too frequently against the administration risks noncompliance, and so it is doling out its losses carefully. It could also be that for a majority of the justices, support for the administration’s substantive agenda, including its restrictive immigration policies, outweighs concerns about specific legal violations. But neither of those theories fully explains why the court — and Chief Justice Roberts in particular — has approached Trump 2.0 so differently from Trump 1.0.
During the first Trump term, the court ruled against President Trump in critical cases. In two cases that bear more than a passing resemblance to the T.P.S. case, Chief Justice Roberts cast the deciding votes and wrote the opinions blocking Mr. Trump from adding a citizenship question to the 2020 census and rescinding the Deferred Action for Childhood Arrivals program.
These decisions did more than thwart the administration’s policy objectives: They essentially called the administration out on its dishonesty.
The census case featured substantial evidence that the goal of the citizenship question was, in the words of a prominent Republican operative, to facilitate legislative redistricting that would be “advantageous to Republicans and non-Hispanic whites.” When the Trump administration sought to defend its actions on the grounds that it needed the citizenship question to enable the Justice Department to enforce the Voting Rights Act, the court concluded that the explanation was plainly pretextual.
The DACA rescission went down on related grounds — that the Department of Homeland Security did not consider or explain important aspects of the action it was taking, and, implicitly, that it had concealed its true motives.
Of course, Mr. Trump also notched important Supreme Court victories during his first term. But even some of the pro-Trump rulings came with an undercurrent of skepticism.
In Trump v. Hawaii, the court allowed the president to carry out the third iteration of his travel ban, refusing to invalidate the ban on the grounds that it was a product of unconstitutional anti-Muslim bias. But Chief Justice Roberts’s opinion for the court seemed to convey disapproval of Mr. Trump’s anti-Muslim statements, favorably quoting a statement by President George W. Bush, following the Sept. 11 attacks, in which Mr. Bush urged tolerance and emphasized that we are “a great country because we share the same values of respect and dignity and human worth.”
In what appeared to be an implicit rebuke of Mr. Trump, Chief Justice Roberts’s opinion noted that throughout our history, presidents have “performed unevenly in living up to those inspiring words.” The chief justice’s opinion in that case also turned at least in part on the fact that the policy process that resulted in the ban had involved extensive interagency consultation and input from other government entities, like the Department of Homeland Security. But as for Mr. Trump, the court intimated, he alone could perhaps not be trusted.
Over the past two years, the court’s posture toward Mr. Trump — and Chief Justice Roberts’s posture in particular — has been strikingly different. Even before the start of the second Trump term, Chief Justice Roberts’s opinion in Trump v. United States granted Mr. Trump extraordinarily broad immunity from criminal liability for acts taken while in office — along the way offering a vision of the presidency beyond the reach of most checks on government power.
This posture has continued. Again and again on the shadow docket, the court has issued entirely unreasoned orders siding with Mr. Trump — allowing immigration enforcement agents to stop citizens and noncitizens alike simply because they speak Spanish or appear to be Latino, allowing the president to remove individuals to third countries without complying with the Convention Against Torture and permitting the expulsion of all transgender service members from the military, among many such orders.
In the T.P.S. case, the court has permitted the administration to terminate the immigrants’ protected status in the face of considerable evidence that it flouted statutory requirements for doing so and that key decision makers — including the president — were motivated by unconstitutional racial bias.
It is true that the court ruled against Mr. Trump in the case of sweeping tariffs on imports, and it will almost surely rule against him in other cases before this Supreme Court term is done. But it is telling what the court did not do in the tariffs case.
It did not note the considerable tension between the national-security rationale the administration presented to the courts and Mr. Trump’s many other statements suggesting the imposition of tariffs was actually driven by other reasons: Brazil’s prosecution of its former president Jair Bolsonaro, for example, and India’s importation of Russian oil.
The opinion also did not address the tension between Mr. Trump’s public crowing about the revenue-raising effect of his tariffs and Solicitor General D. John Sauer’s insistence before the court that the tariffs at issue were “not revenue-raising tariffs.” “The fact that they raise revenue is only incidental,” he said. Instead, the court’s majority merely concluded that the statute’s text did not confer on Mr. Trump the authority he claimed.
Even if Chief Justice Roberts now wished to rein in Mr. Trump, it’s not clear that he would have the votes, as he did in the first term. But the chief justice’s decision to assign the writing of the opinion in the T.P.S. case to Justice Samuel Alito, and to join that opinion without writing separately, gives his imprimatur, as well as the imprimatur of the court, to presidential action that is antithetical to the very notion of the equal protection of the laws. It also provides the administration with a permission structure to proceed with still more actions based on egregiously unconstitutional motivations.
Aspiring autocrats and authoritarians often seek to marginalize not just the law but also courts. And perhaps John Roberts has seen this potential, has grasped it and has maneuvered in hopes of avoiding it. The problem is that he has wildly empowered Mr. Trump, and betrayed core constitutional values, along the way.
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