The Anti-Democracy Project Of John Roberts
Trump v. CASA Inc., decided June 27, continues the personal project of John Roberts to enhance the power of the executive at the expense of the other two branches of government. It continues the work of Trump v. United States, where Roberts gave Trump almost unlimited power to ignore Congress as he sees fit. It follows his weakening of statutes he doesn’t like, his refusal to allow Biden to exercise the authority given him by Congress, as in the student loan case, Biden v. Nebraska, and many other cases.
This post will show how these cases weaken the legislature and the judiciary while strengthening the President. That is profoundly anti-democratic.
Trump v. United States
Here’s a reasonably fair summary of Trump v. United States, which I offer because I refuse to pretend to be neutral about it and don’t seem to be able to make myself read it again anyway. Read the real thing if you can; it’s a breath-taking demonstration of judicial hubris, based on the ridiculous idea that these six rogues can create a rule for the ages, and the even dumber idea that what this nation really needs is a “vigorous” president, unafraid to push against the boundaries of the law as set by the legislature and judicial precedent.
Trump v. CASA Inc.
This case is a government request for relief from nationwide injunctions barring enforcement of the obviously unconstitutional Trump executive order denying birthright citizenship to a large number of babies born here, causing untold damage to them and their families and inflicting untold costs on the states.
The Dissent filed by Ketanji Brown Jackson gives a clear picture of the case.
It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior. When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this.
Snip
To hear the majority tell it, this suit raises a mind-numbingly technical query: Are universal injunctions “sufficiently ‘analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act’” to fall within the equitable authority Congress granted federal courts in the Judiciary Act of 1789? Ante, at 6. But that legalese is a smokescreen. It obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?
Speaking for the anti-democratic majority, Amy Coney Barrett says no. The courts cannot order the Executive to follow the law unless that is necessary to provide complete relief to the parties to the litigation. Her “reasoning” is that the Judiciary Act doesn’t allow a court to give relief to a non-party. Why? Because such relief would not have been allowed under the English Common Law.
Art. III, §1 of the Constitution provides in part as follows:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Barrett says that the judicial power of the United States is limited to the powers of the English High Court of Chancery in 1789. That’s absurd. In Marbury v. Madison, the Supreme Court held that it had the final say on Constitutional questions. That is not true under English law, and certainly not for Courts of Chancery.
Barrett cites Marbury once;
See, e.g., Marbury v. Madison, 1 Cranch 137 (1803) (concluding that James Madison had violated the law but holding that the Court lacked jurisdiction to issue a writ of mandamus ordering him to follow it).
The Wikipedia entry explains that the Court in Marbury first held that the Judiciary Act gave the Supreme Court original jurisdiction in cases of mandamus. That was greater than the original jurisdiction of the Supreme Court granted in Article III. Therefore that section of the Judiciary Act was unconstitutional, and was struck down. Marbury specifically holds that mandamus would be appropriate, but that it would have to proceed through a trial court. Does that sound like Barrett’s citation? No it does not.
Under Barrett’s holding, it is not clear exactly how the judicial branch is to act as a check on the executive branch. There is some discussion about class actions and other techniques. But there is no certainty. Perhaps the decisive factor is this:
Finally, the Government must show a likelihood that it will suffer irreparable harm absent a stay. When a federal court enters a universal injunction against the Government, it “improper[ly] intru[des]” on “a coordinate branch of the Government” and prevents the Government from enforcing its policies against nonparties. That is enough to justify interim relief. Cite omitted.
In other words, the only harm that matters on injunctive relief is the government’s. The damage to everyone else, to every person in the same position as the named parties, is irrelevant. The damage done to the rule of law by allowing a patently unconstitutional and immoral harm is irrelevant.
Comparing Trump v. CASA Inc. and Trump v. United States
1. In both cases, SCOTUS ignores the facts of the case. The indictment in Trump v. United States said that Trump conspired to overturn an election, and laid out substantial factual allegations to support the claim. Roberts natters on about core powers and such, ignoring the fact that there are no circumstances in which overturning an election is a core executive anything.
In CASA, Barrett ignores the damage Trump and his henchmen do by imposing a blatantly unconstitutional policy on non-parties.
2 In both cases SCOTUS imposes an outcome that favors one political party. In Trump v. United States the decision favors Trump. There is no reasonable observer who thinks this would have been the outcome if that indictment had been charged against a Democrat.
In CASA, Barrett says that Gorsuch, Alito, Thomas, and Kavanaugh had previously raised questions about nationwide injunctions, including those levied against the Biden administration. Either she or Roberts or both could have joined with those four to deal with the problem in any of the cases raised by Biden. But no. Then, suddenly, a few weeks after Trump’s second term begins, they both decide this is an important Constitutional issue that must be totally resolved in favor of Trump and the Republicans.
3. In both cases, the power of the coordinate branches of government is weakened. In Trump v. United States, Roberts strangled the power of Congress to control the actions of the President. The holding makes it clear that Trump is entitled to do whatever he wants with the powers given him by law, and can only be held accountable under highly limited circumstance, to be determined later by him and his crew.
The decision also weakened the power of the judiciary to check the executive branch. It gave no guidance to lower courts or prosecutors. It sets itself up as the arbiter, a role it can easily duck. It insures vast delays in any effort to enforce the law against a criminal president.
The opinion in In CASA weakens the power of the judiciary to check the actions of a lawless executive branch, this time directly. It also weakened the power of Congress. Existing laws can only be enforced piecemeal against a lawless president.
In both cases, the power of the President is exalted above all other considerations.
The attack on democracy
Both cases should be seen as part of a decades-long attack on democracy. The legislature is the most democratic branch. It is closest to the citizenry, even given the undemocratic makeup of the Senate. Reducing the power of Congress reduces the influence of voters. By weakening the judiciary, the anti-democratic forces insure that the actions of a lawless executive cannot be controlled.
These aren’t the only attacks by SCOTUS though. The Voting Rights Act was expressly intended to improve our democracy. Roberts struck it down, finding that there is an implicit statute of limitations in the Reconstruction Amendments.
The recent invention of the so-called major questions doctrine weakens the power of the legislature to deal with emergencies. The attacks by SCOTUS on the administrative state are designed to increase the power of the president despite the explicit intent of Congress. Does anyone think Congress would have empowered Trump to decide on the toxicity of lead or the value of specific vaccines? Does anyone think letting Trump direct prosecutions and criminal investigations is a reasonable thing to do?
It’s not just that Roberts and his gang refuse to protect our rights. They actively help Trump destroy our rights.
By ensuring that no one in government has too much power, the Constitution helps protect ordinary Americans every day against abuse of power by those in authority.
John Roberts
He lies. A *lot*. I told an acquaintance he was going to be bad, when said acquaintance was saying he had the makings of a great CJ.
Bad umpires call a high curveball a strike when it misses the corner but a Republican throws it. A Democrat pitcher could get the batter whiffing time after time only to hear “Ball! Ball! Ball! Ball!” until he’s on base.
Those of us who drank baseball with our mother’s milk greeted Roberts’s use of that metaphor in his confirmation hearing with deep distrust. Turns out we were right.
That was then; this is now.
Countries have gone to war and endured horrific bloodshed over far less important issues. I fear we will reach that stage.
Hear, hear! Excellent post, Ed. Thanks so much. Just the thing for a meaningful Independence Day holiday.
Second this!
I’ve reread the declaration of independence. Those evil experienced by the colonists at the hand of Kinh George are analogous to the cruelty of the current administration. And we are duty bound to through off this government and start anew.
I just don’t get it. Sure, if a President is successful, he or she could stretch the law, and be given plenty of leeway. But Trump fails in every area, and fails just as predicted, because all the things Trump wants have been tried before, and failed.
I believe the Supreme Court will rule in favor of a President King only while the President is a Republican. And they will claw back the power they gave to the presidency when a Democrat is President. And it will go on this way until the Court’s Dominionists become the minority again. They have no respect for precedence and no shame in the service of their religion.
Never going to happen, but what would it take to impeach a couple of Justices?
– Flagrant disregard for the Constitution (check: High Crimes, maybe even Bribery in the case of Thomas)
– Democratic super-majority in the Senate (nope) + a handful of Republican Senators (LOL) to reach 2/3 for conviction
– Democratic willingness to exercise this power (not under the current gerontocracy)
confirmation hearings – lying while under oath
Thanks for this timely post, Ed—Roberts is a a huge supporter of fascism, oligarchy, and disenfranchisement. Gotta wonder what he’ll do for work if Trump succeeds in dismantling the Judicial Branch, though. ; )
Also, in the headline, “Democracy” is missing a “c”.
Like all violent criminals, he’ll work for Ed Martin.
You have perfectly captured my thinking. The rule from this Court seems to be Presidents Must Be Allowed To President at all costs. You ignorant plebes might think that what he’s doing is illegal, but WE’LL tell you what illegal is. In the meantime, the duty of the people is to serve the sovereign. Shut up with your whining about your “rights” and let him President, as is HIS right.
You’re missing one word: “GOP”. GOP presidents can do whatever they want. Dem presidents must be prevented from doing anything.
Snowdon
My guess is you’re wolf in sheep’s clothing.
You’re in favor of giving up liberty for a sense of safety from immigrants? Sad.
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I’m pretty sure Snowdog of the North was being snarky.
There is one more case that is, in my view, at least as consequential as those two decisions.
The is no ruling on Trump v Wilcox yet, but the stay they granted is the worst case of legislating from the shadow docket, and a complete reversal of Humphrey’s Executor. Roberts embrace of the most extreme interpretation of the Unitary Executive Theory obliterates some of the most important checks and balances in the executive branch, and enables the government to make decisions on arbitrary and quid-quo-pro basis, and allows Trump to remove all independent bodies that were designs to make sure the government acts professionally and follow due process.
On Rayne’s “The Sound of Teeth on Bone” post, greengiant had an interesting comment about a reference to Fraenkel’s “The Dual State” in Justice Jackson’s CASA dissent. I added to that comment by providing more on Ernst Fraenkel, which seems particularly relevant here:
“Legal Sabotage: Ernst Fraenkel in Hitler’s Germany” by Douglas G. Morris
https://www.europenowjournal.org/2022/03/23/legal-sabotage-ernst-fraenkel-in-hitlers-germany-by-douglas-g-morris/
“The Dual State: A Contribution to the Theory of Dictatorship” – Ernst Fraenkel, 1941
https://ia601502.us.archive.org/26/items/in.ernet.dli.2015.13142/2015.13142.The-Dual-State.pdf
Wow. Just…wow. I’m responding here to the first link you shared, SL, which at first blush seems merely a book review but in fact provides a brilliantly concise synopsis not only of what the review’s author argues is an essential book, but also of the historical importance of the book’s subject, lawyer Fraenkel.
One phrase in particular leapt out at me. Contrasting the rule of law before 1933 with what supplanted it, the review author refers to the legal system under the Third Reich as “the Nazis’ irrational version of natural law.”
The review closes with the kind of shivery comment that is almost de rigueur in 2025 about how such history seems newly relevant. But this review was published three years ago. How far we have fallen since then–into the very irrationality (abetted by Stephen Miller, a man without a law degree but in possession of plenty of hate degrees, at the helm of DOJ) that was the hallmark of the Nazis.
Democracy is misspelled in the article header.
Boy, this all gets pretty depressing. Everything I was taught in civics is apparently false in 2025.
[Fixed, thanks / ~Rayne]
I’m old enough to remember Nixon, firsthand.
I didn’t want to have to live through worse.
What are the options for a federal judge who sees the SC embrace corruption and unconstitutional rulings?
There are no plausible options. A jidge might state a different view of the law, even in hostile language, but their job it to apply that law as stated by their circuit and by SCOTUS.
There may be technical points that could be used for delay, and maybe the facts can be distinguished meaningfully, but neither of those changes the outxome in the long run.
Maybe there’s a way to fashion some kind of relief in an occasional case. They can’t resign because TFG will appoint some horrible replacement. It’s tough for decent people.
Justices Roberts was 45, Kavanaugh was 25 & Barrett was 28 while they worked on the Florida 2000 Cheney/Bush theft of the presidency. Enough said.
Americans don’t effectively defend the Constitution while the cancerous betrayal grows…
It may come down to the question of whether the military will stay out of the fight or support the people and democracy against the forces of the DOJ. More and more I see no way to avoid a coming conflict. The Law and Congress are no longer viable options in defense of America.
I don’t know about the Air Force, but the Army and Marines have a lot of minorities and women.
Seven Chaotic Months in the Life of a New Federal Judge Amir Ali joined the D.C. Federal District Court just weeks before Trump took office. It’s been tumultuous ever since.
Emily Bazelon and Mattathias Schwartz
Published June 30, 2025 Updated July 3, 2025
New York Times GIFT link here:
https://bsky.app/profile/jenniferrap.bsky.social/post/3lsz7blyyjs2v
July 2, 2025 at 5:54 PM
Thanks for this, Ed!
I keep wondering [HOPING, if I’m honest] if we might possibly see
an upswelling of concerted sand-in-the-gears resistance from the District and Appellate Courts.
7/3/25
https://bsky.app/profile/stevevladeck.bsky.social/post/3lt3l2lkurk2b
July 3, 2025 at 4:30 PM
https://bsky.app/profile/reichlinmelnick.bsky.social/post/3lt3m7dunv22e
July 3, 2025 at 4:51 PM
From the Sotomayor [Jackson] dissent:
NEW case re: these 8 men:
https://bsky.app/profile/chrisgeidner.bsky.social/post/3lt5nilmttc2x
July 4, 2025 at 12:19 PM
There was a Zoom conference TODAY, the Geidner followed in THREAD.
NEW in that THREAD:
https://bsky.app/profile/chrisgeidner.bsky.social/post/3lt5rmxn4ok24
July 4, 2025 at 1:33 PM
Yes, when Murphy allowed the DOJ to choose to keep the men in chains at a military base rather than return them to the US while them are trying to assert their rights, I was afraid this would be the outcome.
For some reason, this case has affected me greatly; perhaps being rendered on July 4 plays a part.
Moss sent this to Murphy in Boston, and Murphy
just DENIED it because of SCOTUS orders.
https[:]//bsky[.]app/profile/joshuajfriedman[.]com/post/3lt6bcwdgtc2c
July 4, 2025 at 6:14 PM
Sadly, we now know Murphy is either Team Trump or he can’t figure out a loophole.
https://bsky.app/profile/kyledcheney.bsky.social/post/3lta4zbjcuc2z
July 5, 2025 at 12:02 PM
164. Justice Kagan’s D.V.D. Concurrence Thursday’s denouement in the third-country removals case was not surprising. But the split between Justice Kagan and Justices Sotomayor and Jackson highlights a deeper (and July 4-appropriate) debate. https://www.stevevladeck.com/p/164-justice-kagans-dvd-concurrence Steve Vladeck Jul 04, 2025
So Kagan is treating last week’s awful decision as *precedent*? Can’t say I really get it, but at this point I’m team Jackson. TY, harpie, for following up on this.
The criminality of Nixon, cubed. Plus the Voodoo Economics of Reagan, on meth. And a SCOTUS with barely a sloth’s toes’ worth of justices with integrity.
We’re in a horror movie. Except that it’s real.
Vladeck seems to describe a problem that shouldn’t exist. It doesn’t seem difficult to pursue both propositions at the same time.
Ed,
Thank you for the post. SCOTUS’s, 6-3, Casa, majority, finds new ground to fertilize Jack and the Beanstalk like Fascist fantasies, creating a King within the constitution. We are in this together.
Please comment: Article II of the Constitution states that the president is “to take Care that the Laws be faithfully executed.” A president who breaks a law is doing the direct opposite of “taking Care” that the law be faithfully executed. So breaking a law can never be part of a president’s duties. If follows that a president cannot have criminal immunity for breaking a law since breaking a law cannot be a part of the president’s duties.
You’re not asking a question, you’re making a statement and asking for content from a contributor in return. I find this kind of comment annoying from first-time commenters.
Once you’ve abandoned childhood and grown into adulthood, if you’re still enslaved by the authoritarian dogma of an invisible and magic trinity, is there anything you can’t convince yourself an extension of that righteousness?
The word translated as “righteousness” really means, I understand, justice.
Thank you so much for writing this in a way that people without a legal background can understand. It is the scariest thing I’ve read about our current situation where the president is behaving like a gangster. It also doesn’t give much hope about us getting out of this any time soon. I haven’t read the latest executive order that suppresses voting rights yet but it will likely make it harder to get a Democratic majority in the Senate. My only question is why wasn’t his philosophy made known during his confirmation hearing? Who recommended him to George Bush?