Donald Trump has been President, for the second time, for less than five months. That has been enough time for him to issue numerous executive orders, see some of them challenged successfully in federal court, launch a rhetorical war on the judges who ruled against his administration, and engage in brinksmanship over whether the executive branch would comply with adverse federal court orders, only to reverse course and follow them. Amid this flurry of activity, it is easy to overlook the administration’s recent success on the Supreme Court’s emergency docket, which has facilitated the implementation of Trump’s initiatives.
John Roberts has been Chief Justice of the Supreme Court for twenty years, including four during which Trump previously was President. During the past five months, Roberts has spoken publicly twice in defense of the judiciary and voted both for and against the Trump administration in orders issued by the Court on its emergency docket.
This set of separation of powers developments divides into two phases: The conflict between the executive branch and the judiciary, embodied in the rhetorical clash between Trump and Roberts; and the conciliation, in which the President and the Supreme Court seem to have arrived at a détente.
The Positions of the President and the Chief Justice
President Trump has set out on an ambitious agenda to redefine the nation and punish his perceived enemies. At the core of Trump’s many initiatives is an unprecedented assertion of the President’s powers under Article II of the Constitution. Trump does not believe in separation of powers. He insists that only the executive branch matters and that he may act unilaterally on just about everything: imposing tariffs, ramping up deportation efforts, restructuring the federal government, and much more. Hence Trump’s raft of executive orders from day one. Congress, controlled by Republicans, has stepped aside and essentially allowed Trump to govern by fiat.
With the Article I legislative branch acquiescing to the President, Trump’s adversaries have turned to the courts, with varying degrees of success. That brings us to Chief Justice Roberts and the Article III judiciary. For Roberts, the stakes are complicated.
On the one hand, the Supreme Court has moved steadily to the right under his leadership over the past two decades. Last year’s Supreme Court term ended with Roberts writing key opinions expanding the scope of presidential immunity in a case involving then-former President Trump and weakening the federal government’s regulatory authority. Increasing presidential power and dismantling the administrative state are two fundamental priorities for the conservative legal movement.
On the other hand, Roberts cares deeply about the institutional legitimacy of the judiciary. He does not want the Court and its actions to be viewed through the lens of politics. This occasionally has brought him into conflict with Trump.
Conflict
When several federal courts dealt his administration setbacks early on, Trump and other officials lashed out, even attacking individual judges for their adverse rulings. In March, after Trump called for the impeachment of a federal district court judge who ruled against the administration in a deportation case, Roberts immediately pushed back, albeit in general terms, in a public statement. “Impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said. This statement was not connected to any case or administrative activity—and therefore was noteworthy as an unusual political course of action by the Chief Justice.
In May, when a number of federal district courts were evaluating legal challenges to Trump’s executive orders targeting law firms and questioning whether the administration was complying with court orders, Roberts spoke out again. According to Politico:
Chief Justice John Roberts described the rule of law as “endangered” and warned against “trashing the justices,” but speaking in Washington Monday he didn’t point fingers directly at President Donald Trump or his allies for publicly excoriating judges who’ve ruled against aspects of Trump’s agenda.
“The notion that rule of law governs is the basic proposition,” Roberts said during an appearance at Georgetown Law.
Of course, Roberts didn’t need to mention Trump in his speech. The dots were easy to connect. In any event, journalists covering the Chief Justice’s remarks connected them.
From a separation of powers perspective, the issue had been joined, and an existential institutional question for the judiciary persisted: What if the administration flouted a federal court order? Realistically, absent purse or sword, what could a judge do in response to executive branch defiance?
Détente
Recent developments indicate that Trump has backed away from brinksmanship. The administration no longer seems to be questioning the authority of the federal judiciary. At the same time, the administration has enjoyed success on the Supreme Court’s emergency (or “shadow”) docket the past two months.
Most telling is the administration’s reversal in the Kilmar Abrego Garcia case. Initially the Trump administration seemed to invite a constitutional confrontation by ostentatiously resisting a federal district court’s order, upheld by the Supreme Court, requiring it to “facilitate” Abrego Garcia’s return from El Salvador after mistakenly deporting him.
Now the administration has decided to comply with that order by bringing Abrego Garcia back to face federal criminal charges. “John Roberts: 1, Stephen Miller: 0,” read the headline of Jason Willick’s opinion piece in the Washington Post. (Miller, the White House Deputy Chief of Staff, insisted earlier this year that Abrego Garcia had been properly deported.) The administration is following the law by returning Abrego Garcia to the United States and affording him due process.
Meanwhile, the administration’s recent successes on the shadow docket include two rulings earlier this month in favor of DOGE, the controversial department created to downsize the federal government, and another ruling last month expanding the President’s authority to remove officers from independent agencies, Supreme Court precedent to the contrary.
As to the removal case, the Supreme Court granted the Trump administration’s request for a stay of lower court orders preventing the President from firing members of two independent agencies—the National Labor Relations Board and Merit Systems Protection Board—without cause. The Court issued this order despite the contrary rule of Humphrey’s Executor v. United States, a 1935 Supreme Court case that was entirely on point.
As to DOGE, the Court granted the Trump administration’s application for a stay of a district court injunction denying DOGE access to Social Security Administration records that includes individuals’ personal data. And, in a separate case on the emergency docket, the Court also granted the Trump administration’s request to prevent discovery of DOGE’s operations in a Freedom of Information Act case. In all three cases, the three justices appointed by Democratic Presidents—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—dissented.
In fact, since April 4, the Court “has granted at least partial relief to the Trump administration” in ten rulings on the emergency docket, Professor Steve Vladeck noted recently in his weekly newsletter.
For How Long?
Peace seems to have broken out between President Trump and Roberts’ Supreme Court. Perhaps Trump has decided that he need not continue to bash the federal judiciary. After all, for the most part, his administration is being allowed to move forward with many important policy initiatives without undue interference from the federal courts.
There is no guarantee that this détente will last, of course. Self-restraint is not one of Trump’s virtues, new executive orders and cases challenging them are sure to come, and cases from the Supreme Court’s emergency docket ultimately are heard on the merits docket; the Court’s final judgment may not accord with its earlier order on the emergency docket. Should the Court deal the administration a setback on an important matter, the President is likely to vent on Truth Social.
For Chief Justice Roberts, the current ceasefire must be welcome. But the institutional challenge posed by Trump’s presidency to the Supreme Court remains. For example, Trump has taken numerous actions against Harvard University; some have already been challenged successfully in federal court. Should the legal challenges to any of the administration’s actions end up before the Supreme Court, it must protect the Constitution and enforce the law. Otherwise, the Court will have abdicated its role as a coordinate branch of government, abandoned its authority under Marbury v. Madison to say what the law is, and compromised the Court’s legitimacy.
