The Supreme Court Crafted a Heads-I-Win, Tails-You-Lose Rule for Republican Presidents

Amicus’ End-of-Term Breakfast Table is a storied tradition. This year, Dahlia Lithwick and Mark Joseph Stern invited some of the country’s smartest court analysts to chew over what the Supreme Court has left in the wake of its October 2024 term, which concluded on Friday with five decisions and one case that will be reargued in the term that begins in October. As both Dahlia and Mark have been warning since the Trump inauguration, you have to listen to the beats between the notes to fully appreciate what’s been going on at One First Street these past few months—that means watching what’s happening on the emergency docket and reading between the lines of the written opinions of the merits docket.

This year’s extraordinary Breakfast Table brain trust includes New York Times opinion columnist Jamelle Bouie, civil rights lawyer and founding director of the 14th Amendment Center for Law and Democracy at the Howard University School of Law Sherrilyn Ifill, and Stephen Vladeck, professor of law at the Georgetown University Law Center and author of the One First newsletter on Substack. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: Steve, you’re one of a handful of court watchers who treats what happens on the emergency docket as though it’s equally if not more important than what happens on the merits docket, the one we all get to play along with at home. Yet, as rock ’em, sock ’em as the emergency or “shadow docket” has been this year, I don’t think anyone could say that the term that ended last Friday was sanitized or burnished or buffed up for public consumption. It seems to me that what we saw at the end of the term was the 6–3 supermajority approach to the shadow docket merged with the 6–3 merits docket. You started Trump’s presidency saying we should watch the contrast between the two dockets. Do you share my sense that they’ve converged, and if so, do you have thoughts about why?

Steve Vladeck: What’s really striking about not just the last couple of weeks of the term, but really the last three months, is this convergence. That’s exactly the word I’d use. We’ve seen some pretty bad behavior by the court procedurally on emergency applications for some time, and that has now spilled over into pretty bad behavior substantively. The birthright citizenship decision is in some respects the apotheosis of this. It’s the zenith, because you have the Supreme Court purporting to just grant these three modest emergency applications, but in so doing, they’re completely restructuring the relationship between the Supreme Court and federal district courts. And this came at the end of a week where the court had granted emergency relief to the Trump administration in a case in which the administration had defied the district court not once, but twice.

So I take these rulings together as this remarkable assertion of power for power’s sake. The Supreme Court is saying, “We will be the ones who decide whether what President Trump is doing is legal or not, not anybody else, including district courts.” And part of why that’s so striking is because in the birthright citizenship case, they didn’t decide the case on the merits. They didn’t decide whether what President Trump is doing is legal. Justice Brett Kavanaugh writes a concurrence where he says this is all about the need for a uniform national interim rule. A rule that the court didn’t actually provide. It’s this remarkable and bankrupt vision of judicial supremacy—where the Supreme Court is claiming all this power, and then not actually exercising it.

Mark Joseph Stern: Sherrilyn, we always think of you when the Supreme Court curbs the power of district courts to do district court work. Trump v. CASA feels like the very embodiment of a Supreme Court that’s making it almost impossible for district court judges to continue reining in Trump’s lawlessness—something they’ve been doing for months, often at great personal and professional peril. This decision didn’t actually get to birthright citizenship on the merits, but what the court did decide seems to confirm, in pretty contemptuous language, that the six Republican-appointed justices on the court just fundamentally reject the proposition that the work of federal district courts matters.

Sherrilyn Ifill: Trump v. CASA really reveals the court’s lack of discipline when they are grabbing power around these things that they have been about for some time. By my own checklist, Trump v. CASA allows them to achieve several of those things: One is freeing up the executive to do almost whatever they want to do. A kind of unitary executive on steroids has been a long-standing project for them. They are all about their own supremacy—not judicial supremacy, but Supreme Court supremacy; arrogating to themselves the power to make these decisions about checks and balances, about executive power, about what Congress can do and can’t do.

Weakening the 14^th Amendment has also been a project. Even though the court didn’t decide the merits issue in this case, they didn’t need to. It was actually kind of neat, because they gave the administration the ability to apply this unconstitutional executive order to people that fall under it (that is children who are born in the United States and neither parent is either a permanent resident or a citizen) and to ensure they never have to talk about the merits. So we can’t say that the court struck down this important provision of the 14^th Amendment, but nonetheless they were able to achieve the weakening of the 14^th Amendment, which the conservative majority always loves to do, but with this case they don’t have to do it directly.

But the part that really kills me is what you’re referring to, Mark, which is this thing about the district courts. We’ve been seeing in these cases an administration that is pretty flagrantly playing in the face of district court judges, defying orders, subverting the district court, and lying to district courts. The Supreme Court is aware of all this and they seem not to be bothered by it at all. According to the Supreme Court, only they get to decide when the president has gone too far. They’re essentially saying, “Do whatever you want with those silly guys. Do whatever you want with those district court judges. It doesn’t much matter to us.” Did we know that the Supreme Court was this hostile to district courts five or 10 years ago?

Dahlia Lithwick: I’m reminded of one year ago having this conversation about federal prosecutors, and hearing Justice Alito in the Trump immunity argument express this contempt about prosecutors, as though they were all wildebeests who live in an underground lair. Jamelle, I think you wanted to answer in a more substantive way than my wildebeest comment.

Jamelle Bouie: I have a very cynical answer, which is that five years ago, 10 years ago, district court national injunctions were primarily hobbling a Democratic president, and now they’re hobbling a Republican president and the Supreme Court doesn’t like it. And that’s in the same way that in the immunity case, federal prosecutors were going after a Republican former president. They don’t like it. Maybe I am missing some jurisprudential claims they’ve made in the past, but just from where I sit, it really seems to be as straightforward as: “Well, previously it was a Democratic president and now it’s a Republican president, and we have a belief that Republican presidents ought to be able to act in a completely unfettered way, or at least a presumptively unfettered way.” And that furthermore, “Maybe they’ll do something that requires us to step in, but no one should be able to tell them ‘no’ other than us.”

Sherrilyn Ifill: But that would then require them to drill down into the particular excesses that they think these district courts engaged in, because presumably at some point in the future they’ll want to actually support something that district courts have done. As you point out, the Supreme Court did not feel the need to tackle the issue of nationwide injunctions during the Biden administration, with the nationwide injunction on student loan relief and the nationwide injunction regarding the moratorium on oil and gas leases. They let those things go. But now, they seem to be throwing out the baby with the bathwater. They seem to be throwing out the actual power of district court judges to engage in a certain kind of decisionmaking—that’s going sweep along with it Judge Matthew Kacsmaryk and other district court judges who they seem to like. There’s something about the tone that seems very targeted at the position of judge and not just at the individuals.

Jamelle Bouie: In Justice Kavanaugh’s concurrence in CASA, I believe there’s a note about how none of this speaks to whether or not nationwide injunctions are permissible under the Administrative Procedures Act. Conveniently, when Democrats are trying to do things with the federal government, it’s often through administrative procedure. So, hey, you can still block an EPA rule, you can still block an HHS rule, but if a Republican president wants to issue an executive order, we have to let that play out through a process that takes more time to resolve.

Steve Vladeck: I think if there’s a theme that cuts across the two very different halves of the court’s docket from this term, it’s this precise theme. I would phrase it slightly cynically, in that I think you can see, in both the almost always unexplained rulings on emergency applications and in a bunch of the big merits cases, the court is basically creating an infrastructure in which they can sign off on the things they want to sign off on, block the things they want to block, and not really have to work that hard to rationalize which ones are which.

This is the space the justices buy for themselves when they don’t explain grants of emergency relief; we never know if it was because they think the government’s going to win, or because they have some very perverted view of the equities. I see all of this as circling around the same theme, which is a majority that is very invested in preserving its own power, especially in context in which it can rein in the powers of other institutions that it currently views as at odds with itself.

This is especially dangerous because it’s one thing when the victims of that power restructuring are executive branch agencies; it’s something else entirely when it’s the lower courts, because I don’t know how many people on the street are going to differentiate between diminishing public faith in district court judges and diminishing public faith in the federal judiciary as an institution. The justices’ apparent belief that they can somehow separate themselves from district judges in this story is demonstrably wanting for evidence.

Sherrilyn Ifill: I think Steve is absolutely right, and this is why I argue that these justices are no longer judging. This is not what judicial decisionmaking is. What they are doing is creating precisely what Steve said, which is an infrastructure that allows them to basically freestyle to do whatever they want, depending on the case, depending on the judge, and depending on the president.

That’s not judging. That’s not an infrastructure of rules. As a litigator, that’s not a litigation structure into which I could make any rational decision about which cases to bring, about what theories to advance, and so on and so forth. So it’s an attack really on the legal system itself, in favor of a system that the judges can manipulate to their will. But beyond that, we have to marry this to the kinds of threats we have been seeing against district court judges. District court judges have been subject to violent threats. There has been this wave of sending unsolicited pizzas to the homes of district court judges using the name of the Judge Esther Salas’ son, who was murdered in New Jersey several years ago.

There is a stark contrast between the response of Chief Justice Roberts, who said something about how it’s not appropriate to default to impeachment if you don’t like a judicial decision, and what Justice Ketanji Brown Jackson said at the 1^st Circuit Circuit judicial conference, where she gave a speech about district court judges, and invoked district court judges from the Civil Rights era and the courageousness and bravery of those judges. Threats against district court judges is about as serious as it gets. There is something very cavalier, careless, and I think dangerous about the way in which this court is approaching their desire to break down an infrastructure that doesn’t give them maximum room to make whatever decisions they want.

We are talking about the actual safety of federal district court judges. We’re talking about judges being lied to; we’re talking about judges’ orders being defied. These are fundamental structural protections for our legal system. And I won’t let them off the hook by saying they want to do whatever they want. I think it’s important to point out that they are doing it in a reckless and careless manner.

That has become the feature of this six-member supermajority, a kind of carelessness and a recklessness about the process by which they arrogate this power to themselves, that threatens the entire system.

Mark Joseph Stern: I would echo Sherrilyn’s praise of the speech Justice Jackson gave, and I’ll note that she brought this back up in her dissent in Trump v. CASA, where she slams the majority’s “complicity in the creation of a culture of disdain for lower courts. Their rulings and the law as they interpret it, which will surely hasten the downfall of our governing institutions, enabling our collective demise.” I don’t think she could have put it in much starker terms than that. That is as blunt a warning as they come.

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