The Supreme Court as Accomplice

The Very Long Line of Cases Undermining the Rule of Law

Yesterday’s birthright citizenship case kneecapping national injunctions is obviously terrible.

The final line of Justice Sotomayor’s dissent sums it up well: “With the stroke of a pen, the President has made a ‘solemn mockery’ of our Constitution. Rather than stand firm, the Court gives way. Because such complicity should know no place in our system of law, I dissent.”

The Court need look no further to Trump’s reaction to its decision to see just how helpful their rulings are to his authoritarian maneuvers and propaganda.

First, he declared: “Amazing decision, one we're very happy about.”

Then, he proceeded to declare that the Court had actually ruled with him on the merits that birthright citizenship was not a right established in the Constitution—which the decision did not do. (Just as in the Abrego Garcia case, he immediately twisted their own decision to lie to the public about what the Court had ruled.)

On a hopeful front, anticipating this ruling, lawyers are already moving forward on a class action on the birthright citizenship question:

NEVER stop fighting.

But whatever happens there, the bigger dilemma—that we have a Court playing wingman to all that Trump is doing—could not be more clear….

The Court’s Role as Accomplice

Think of it this way.

If Project 2025 had had a chapter outlining the role the federal judiciary could play in putting all its dark promises into place—and allowing authoritarianism to advance quickly and broadly—here are what the key elements would be:

• create immunity for federal officials engaging in official acts

• make it as difficult as possible for courts and those aggrieved by illegal acts to stop them—even after they have been found to be illegal or when they are blatantly illegal

• use rulings to create a culture where federal district court orders can be regularly ignored with incredibly slow or no repercussions whatsoever

• create no disincentive for the government to violate court orders for as long as possible, allowing that government to accomplish its goals even after they have been ruled to be illegal (and after which, their illegal actions become far more difficult to undo)

• refuse to rule on cases of abusive political or governmental behavior—that lock in one side’s power and make it impossible for the other side to counter—by concluding that such cases are too political for the courts to weigh in on

• pace decisionmaking to draw out or delay cases that protect free elections, democracy and the rule of law, but rush through cases that undermine the rule of law and democracy

• make it more difficult to prove political corruption, while making it easier for the wealthiest to control politics and government

• apply originalist principles and strict textualism in ways that undermine democracy and the rule of law; but ignore or defy the clear text or originalism when it would serve to uphold the rule of law

• throw out decades of established precedent, principles or practices when that precedent or those principles served to protect rights, democracy and/or the rule of law; but cling to any precedent, no matter how obscure, that undermines rights, democracy and/or the rule of law

• use hurdles such as standing to but brakes on cases that would protect rights, democracy and/or the rule of law, but ignore those same rules for cases that undermine rights, democracy and/or the rule of law

• eviscerate long-standing legislation protecting democracy and the rule of law, inviting the Congress to revisit that legislation, knowing full well that the legislative process is so broken that new legislation protecting democracy will not be forthcoming

• defer to states, “states rights” and state courts when those states are undermining democracy and rights; but ignore or override states and state courts when those states or courts are seeking to protect or support democracy and rights

• use cases that were filed for one purpose (and which are clearly losing cases for the government) to undermine other rule of law principles along the way

• insist that any criticism of the courts for doing any of this undermines the rule of law

If you had a Court doing all this at once, boy would that Court be playing a critical role in undermining democracy and the rule of law while advancing authoritarianism.

And this would’ve been a Chapter spelled out in Project 2025, it arguably would’ve been the most ominous of all the chapters.

And sadly, as you look closely at the Roberts era, it’s exactly what the Court’s been doing all this time.