Will the Supreme Court Enable Dictatorship?

I've been alive for sixty-seven years, and in the first sixty-six of them, it never once occurred to me that I would have to ask this question. I’ve often disliked or disagreed with a Supreme Court decision, but I have always seen the Justices as the ultimate defenders of the rule of law. That is, after all, their core function. By writing the Court into the Constitution, the Founders made it the institutional embodiment of an ideal: the ideal that, in the words of John Adams, we have a government of laws, not men.

But these are strange times. There are plenty of reasons to worry about the Court’s intentions, but I will restrict myself to three.

Trump v. United States (July 2024)

This was a 6-3 decision – the six Republican-appointed Justices versus the three Democratic-appointed ones – which ruled that a President has

absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.

In other words, as long as a President (or former President) can argue that an action falls within the scope of his official duties – a parameter the Court does not even attempt to define – he cannot be punished for a crime. He can murder, steal, ignore the law of the land, perhaps even commit treason, and still be immune from criminal prosecution. Or, as Justice Sotomayor put it in her dissent, if the President

orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. …

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

By the logic of Trump v. United States, if the President were to declare a fictional emergency and send troops into politically unfriendly cities – oh, wait, he’s already doing that. Let’s ratchet up our hypothetical a bit. If in next year’s midterm elections, the President were to use federal officers to shut down certain polling places because of an alleged ‘invasion’ by illegal aliens, he could not be held legally accountable. If a foreign power were to purchase a billion dollars worth of Trump Crypto and then suddenly have its tariffs lifted, he could not be held legally accountable. If he were to close down certain media outlets because he claimed we were at war and that they were giving aid and comfort to the enemy, he could not be held legally accountable. Presumably he could still be arrested if he robbed a liquor store. But in practice, since almost everything a President does can be connected, however tenuously, to his official duties, this ruling places the President beyond the law.

Trump v. CASA (June 2025)

The Trump Administration has been doing poorly in its cases before the lower federal courts. Its actions violate numerous precedents, and both Democratic-appointed and Republican-appointed federal judges have found against it about two-thirds of the time. The exception is at the Supreme Court, where the administration is doing much better.

In case after case, when a federal judge has ordered the administration to cease doing something – say, to cease impounding funds that have been appropriated by Congress; or to cease firing federal employees who are protected by civil service laws; or to cease deporting people to dangerous hellholes without due process – the Supreme Court has reversed the order through its “shadow docket” of unsigned decisions, which give direction without explaining their reasoning. These reversals have generally consisted of allowing the administration to keep doing what it’s doing while the case winds its way through the courts, a process that can take years. If you’ve been unlawfully fired, or your agency has been unlawfully eliminated, or you’ve been unlawfully deported to a place where you might be tortured or killed, a favorable ruling three years from now isn’t much of a remedy.

In the past, a federal judge was able to issue a nationwide injunction. If a judge found that the government was doing something illegal, he could order it to stop doing so, and that order would be binding across the entire United States. In the leadup to Trump v. CASA, a judge ruled that an executive order ending birthright citizenship was illegal. The judge probably didn’t find this a tough call, since the first sentence of Section 1 of the Fourteenth Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” That doesn’t seem like a hard statement to interpret. The rest of Section 1 goes on to say that all citizens will have equal rights and equal protections, so that – to paraphrase Animal Farm – no citizens will be more equal than others.

We know a lot about this clause’s historical context: it was intended to overturn the Dred Scott decision, which declared, among other things, that no person of African descent could ever be a U.S. citizen. The question of whether the United States would be a white man’s country, or everybody’s country, has been with us since the beginning, and evidently it is with us still. If the Trump executive order on birthright citizenship were to become law, it would be used mainly against children of immigrants. One doubts they would be Scandinavian immigrants.

This was the case in which the Supreme Court decided, 6-3 – there’s that number again – to limit the scope of a federal judge’s power of injunction. Other Presidents had asked the Court to do so for years, and had gotten nowhere. Suddenly the Justices were worried that federal judges, when they clashed with the President – or at least with this President – had too many arrows in their quiver.

Trump v. Slaughter (currently being argued)

Rebecca Slaughter and Alvaro Bedoya were Democratic appointees to the Federal Trade Commission, which Congress created in 1914 as an independent, bipartisan agency governed by five commissioners who could not be fired by a President except “for cause,” which was defined by the law as “inefficiency, neglect, or malfeasance.” Congress’s clear intent was to insulate the agency from political pressure. The FTC was not supposed to conform to a President’s agenda, but to chart its own course. We have a number of such agencies, including, most famously, the Federal Reserve Board.

This year, Trump fired Slaughter and Bedoya without even alleging “inefficiency, neglect, or malfeasance”: he said he was getting rid of them because of policy differences. In doing so, he defied both the original FTC Act and a unanimous 1935 Supreme Court decision, Humphrey’s Executor v. United States, which ruled that Congress had the power to create independent federal agencies that serve a “quasi-legislative or quasi-judicial” function, and to protect the independence of those agencies by limiting the President’s firing power. Bedoya has resigned, and is no longer part of the lawsuit, but Slaughter is fighting on. A federal judge reinstated her; the Supreme Court overruled that reinstatement; Slaughter is currently out of a job.

What argument can the administration give for defying the FTC Act’s plain wording? Essentially that the original law was unconstitutional, because every person in the executive branch serves at the pleasure of the President. This contention is known as the Unitary Executive Theory, which used to be considered fringe, but now has some powerful adherents. I’ll say more about that theory below. But first let me discuss why, up until now, Congress and the courts have not subscribed to it.

It isn’t hard to think of why we might want independent executive agencies. We might want the FBI and the Department of Justice to prosecute criminals even if the President has a soft spot for those criminals. We might want the Federal Reserve Board to be insulated from political pressure so that it doesn’t do long-term damage – e.g. light an inflationary fuse – by heating up the economy just before an election. We might want the Centers for Disease Control and Prevention (CDC) or the National Institutes of Health (NIH) or the National Oceanic and Atmospheric Association (NOAA) to make decisions based on the best available science, not the most convenient available politics. We might want the Bureau of Labor Statistics to publish honest numbers, rather than ones that suit an administration’s narrative.

There’s also something we very much don’t want: we don’t want the “spoils system,” in which every new administration mounts a wholesale purge of federal workers and packs each rung of the government with political loyalists. That was how things worked between 1829 and 1883, when President Garfield was assassinated by someone who didn’t get a patronage job, and the Pendleton Act was passed to de-politicize the civil service. In 1939, the Hatch Act took that de-politicization further. Since then, the civil service has been reasonably well-insulated from politics, at least until now.

I know some people on the right like to characterize the federal bureaucracy as the “Deep State,” a sinister cabal dedicated to frustrating the will of the people, but what that means in practice is that politicians can’t fire whoever they please. We don’t give them that power because we’ve seen what they do with it. For years, both the federal government and many local governments were run like the old Tammany Hall machine in New York City, where your job depended not on what you did, or how well you did it, but on who you drummed up votes for. Both throughout the world and throughout U.S. history, a government with a politicized civil service has ended up awash in corruption and incompetence.

None of us alive has seen a real government swamp, because we’ve been draining it in fits and starts since 1883. Don’t believe me? Try to recall the last time you had to pay a bribe. There are plenty of countries in which you can’t get a government worker to do anything for you – give you a building permit, register your car, assess your property, even catch someone who has burgled you – unless you slip him some cash. Most Americans don’t have to live that way, but we once did. If we return to the spoils system, we can expect to do so again.

By 6-3 – notice a pattern? – the Court voted to hear Trump v. Slaughter, and they invited the parties to submit arguments about whether Humphrey’s Executor should be overturned. The smart money says it will be overturned, because “originalism,” the Court’s currently dominant legal doctrine, is thought to support the Unitary Executive Theory.

That theory seems simple, on the face of it. Article II of the Constitution begins by saying “The executive Power shall be vested in a President of the United States of America,” full stop. Originalists take this to mean that everyone and everything in the executive branch must be under the President’s direct control. Considering how big the federal government has become, and the range of its activities, that is a staggering amount of power to give to one person. In the Jefferson Administration, the federal government, outside of the military, employed about 3900 persons, 3000 of whom worked for the post office and 700 of whom were clerks. A large portion of the government’s correspondence was handled by Jefferson himself, or by his private secretary. Things have changed a little bit.

Still, that sentence in Article II sounds pretty straightforward. Is there anything in the Constitution to weigh against it?

There is the thrust of the entire document. If the Constitution is about anything, it is about not concentrating absolute power in the hands of a single person. That is why we have a separation of powers. It is why we have three coequal branches of government. It is why we have checks and balances: the Congress’s impeachment power, the President’s veto power, the Court’s power of judicial review, the powers reserved to the states and the people. The Founding Fathers had seen what monarchy was like, and they didn’t care for it. Everything about the U.S. Constitution is designed to prevent an excessive concentration of power – to prevent tyranny.

That isn’t easy to prevent, as we are now seeing. We have a President who doesn’t bother to pass laws, but who governs mainly by executive order, or, to use plainer language, by decree. We have a President who feels free to excoriate judges and ignore their rulings. We have a President whose party, largely purged of the disobedient, controls the House and Senate, so that a neutered legislature gives him almost everything he demands. We have a President who pushes Republican-dominated state governments to attempt, through midterm gerrymandering, to steal congressional seats. And looming behind it all, from the January 6th riots to domestic troop deployments to the firebombing of a governor’s house, is the threat of violence, sometimes stemming from the President’s followers, and sometimes from the President himself.

At the national level, the last governmental check still functioning is the courts. So far, for the most part, federal judges, both Democrats and Republicans, have tried to do their jobs and uphold the law. The exception, however, is the highest court in the land, which seems ready to endorse an unbounded expansion of Presidential power. If the current docket goes the way court-watchers expect, the conservative majority on the Supreme Court will behave like every other branch of the Republican Party: it will fall into line behind Donald Trump. It is very, very hard for me to write that sentence. My entire life, I’ve taken for granted that the Supreme Court is not just a bunch of political hacks, that it stands for something, the way the Enlightenment and the Declaration of Independence and the Constitution stand for something. To be forced to think otherwise is heartbreaking.

If every countervailing force within the system bows to the will of one man, a man who permits no restraints whatsoever on his appetites and impulses; if our entire heritage of law ceases to matter – what is left? How do we avoid a choice between dictatorship and chaos?

~ STUDEBAKER (Studebaker@studebakerguy.bsky.com)