Stare Indecisis
David Cole on the Supreme Court’s 2025–2026 term
In the Review’s August 20 issue, David Cole surveys the Supreme Court’s 2025–2026 term. How’s the judicial branch dealing with the country’s slide into autocracy?
The term just concluded offered good news and bad news. The good news is that the Court will sometimes check Trump when he acts unlawfully. In this sense, it functioned as a court, not as a politically partisan institution. That is essential to the preservation of the rule of law, and should not be discounted.
But the bad news is that the Court is also more willing than ever to thrust aside prior decisions that get in the way of its desired outcomes. Limits on presidential power are essential to a constitutional democracy, but so, too, are limits on the Court’s power.
While in a few major cases—including rulings that upheld birthright citizenship and struck down the president’s attempts to unilaterally impose tariffs—some of the Court’s conservatives (although never Clarence Thomas) voted with their three liberal colleagues to, as Cole writes, “enforce limits against Trump,” the Roberts Court nonetheless “recognizes few limits on its own power. In particular, it too often runs roughshod over prior decisions to achieve conservative results simply because it disagrees with those prior decisions.”
Below, alongside Cole’s essay, are six articles from our archive about the Roberts Court.
Close Calls
David Cole
Can we rely on the courts, and most importantly the Supreme Court, to resist major assaults on the rule of law by the Trump administration? That question was front and center during the Court’s recently concluded 2025–2026 term. With its six Republican appointees—three nominated by Trump—some feared that, much like the Republican-controlled Congress, the Court would reflexively back the president. Initial indications from the Court’s “emergency docket,” where it considers requests to temporarily stay lower court orders, seemed to bear out those worries. The Court has granted seventeen such requests, often without giving any reasons and usually by a 6–3 margin.
By the end of the term, however, the story was more nuanced. The Court blocked four of Trump’s major initiatives: ending birthright citizenship, imposing worldwide tariffs, firing Federal Reserve governor Lisa Cook, and dispatching National Guard troops to Chicago, Portland, and other cities. In other significant cases as well, the Court rejected positions advanced by Trump. In a decision that he called “a tremendous loss,” it held that federal law permits the counting of mail-in ballots posted by election day but received thereafter. And it refuted the Trump administration’s assertion of constitutionally unchecked power to demand that Google turn over the cell phone location histories of unlimited numbers of Americans. The justices may not be, as Trump called them after he lost the tariffs case, “fools and lapdogs for the RINOs and the radical left Democrats,” but this is not Donald Trump’s Court.
Each of Trump’s appointees voted against him on important issues. In the tariffs case, Learning Resources, Inc. v. Trump, Justices Amy Coney Barrett and Neil Gorsuch, both Trump appointees, as well as Chief Justice John Roberts joined the three Democratic appointees—Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson—to rule against the president. In the birthright citizenship case, Barrett, Roberts, and Brett Kavanaugh, another Trump appointee, joined the three liberal justices to reject Trump’s attempt to redefine who is an American. Roberts, Kavanaugh, and Gorsuch joined the liberals to find that the federal government’s demand for cell phone location data is a search limited by the Fourth Amendment. Roberts and Kavanaugh joined the three liberal justices to block Trump’s firing of Cook. And in the National Guard case, Kavanaugh, Barrett, and Roberts joined the liberals. These are not the decisions of a Court doing the president’s bidding or voting exclusively along party lines. By contrast, had these issues been put to a vote in Congress, would a single Republican have broken ranks?
The rulings cannot be dismissed as mere token losses for Trump. Each one established important guardrails on the executive branch. The tariffs decision rejected the president’s assertion of emergency powers, a step courts rarely take. Justice Samuel Alito called the birthright citizenship case “one of the most important decisions in the history of the Court.” The decision blocking the firing of Cook protected the independence of the Federal Reserve, the nation’s most powerful financial institution. And the National Guard decision kept troops off our streets, halting Trump’s invocation of a classic authoritarian move.
Nor can the decisions be discounted on the ground that no reasonable judge could rule in Trump’s favor. They all raised serious and unresolved questions. In Trump v. Barbara, the Court ruled that the Fourteenth Amendment, which extends citizenship to all persons born in the United States and “subject to the jurisdiction thereof,” was intended to adopt the then-existing common law rule of birthright citizenship. That rule, borrowed from English common law, provided that virtually all persons born in the country were “subject to the jurisdiction thereof” and therefore citizens, with only four narrow exceptions: children of ambassadors, people born in territory occupied by a foreign power, individuals born on foreign ships, and Native Americans born on tribal lands. (Congress subsequently extended citizenship to Native Americans by statute.)
In 1898 the Court affirmed this common law understanding in United States v. Wong Kim Ark. But that case involved the child of Chinese nationals who were permanently and legally domiciled in the United States, so it did not technically involve the classes of persons to whom Trump sought to deny citizenship: children of foreign nationals here illegally and children of transient visitors.
While six justices agreed that Trump’s executive order was illegal, only five (Roberts, Barrett, and the three liberals) deemed it unconstitutional. Kavanaugh concurred only because Congress had incorporated the common law understanding into statute in 1940 and 1952, and he concluded that Trump’s order violated that statute. But on the constitutional question, Barbara turned out to be a close case; four justices concluded that the Constitution permitted Trump’s interpretation. Alito and Kavanaugh reasoned that neither the framers of the Fourteenth Amendment nor the Court in Wong Kim Ark had considered the issue of illegally or temporarily present foreign nationals. When the Fourteenth Amendment was adopted, there were no restrictions on immigration, so there were no “illegal aliens,” and the logistics of travel meant that transient visitors were rare. Thomas and Gorsuch viewed the Fourteenth Amendment as addressed principally to the citizenship of the newly freed slaves, who were both born and “domiciled” here; they therefore found that it did not encompass temporary or illegal visitors. The majority had the stronger argument from precedent, principle, and what you might call legal culture: it has long been the settled understanding that virtually everyone born here is a citizen, and that rule is both simple to administer and puts everyone on an equal footing from birth. But the dissents raise serious objections that cannot be dismissed out of hand, as the nearly two hundred pages of opinions attest.
The tariffs case also presented a close question. The majority ruled that the president’s power to “regulate” imports under the International Emergency Economic Powers Act (IEEPA) does not include the power to impose tariffs, as the Constitution generally assigns the power to tax to Congress, a tariff is a type of tax, and the IEEPA does not explicitly delegate the authority to tariff to the president. But Kavanaugh wrote a thoughtful dissent for three justices that echoed an earlier decision by Judge Richard Taranto, a widely respected moderate member of the US Court of Appeals for the Federal Circuit. The Supreme Court had previously interpreted the IEEPA broadly, and President Richard Nixon had imposed tariffs under a predecessor statute. Reasonable people could differ on the legal question, yet the Court sided against the president.
In Trump v. Cook, the majority ruled that the president does not have unilateral authority to remove governors from the Federal Reserve Board, even though in another case the same day, it recognized such an authority over virtually all other federal agencies. The Court identified no principled rationale for the distinction. It simply noted that the Federal Reserve is a successor of sorts to the First and Second Banks of the United States, which were independent of the executive. But those predecessors exercised substantially less authority than the Fed does today, so the agency’s historical provenance does not offer a rational justification for treating it differently from other agencies today. The Court also rejected Trump’s argument that his determination that Cook was properly dismissed “for cause” was not judicially reviewable and that Cook had been provided adequate notice and opportunity to respond. But there was very little precedent on these questions, and the vote was 5–4, as close as it gets, so again the case cannot be considered an inevitable defeat for the president.
In Chatrie v. United States, the Court declared that the federal government’s use of a “geofence warrant” to obtain personal cell phone location data from Google on anyone in the vicinity of a bank when it was robbed amounted to a search governed by the Fourth Amendment. The Trump administration argued that the Fourth Amendment did not apply at all, meaning that the government could demand location history without any warrant or probable cause. It urged the Court to extend analog-era precedents holding that bank records and pen registers, which record the phone numbers you call, are not protected by the Fourth Amendment because when you open a bank account or use a phone, you voluntarily give that information to the bank or phone company, forfeiting any privacy. Applying that rule to digital information, however, would have disastrous implications, as nowadays we share virtually everything we do with a third party—our emails, photos, texts, documents, Google searches, online reading habits, and physical location. The Court ruled that location data is sufficiently personal and revealing, and not truly voluntarily shared, to warrant Fourth Amendment protection. But this was a novel question, and three justices dissented.
In yet another significant loss for the administration, the Court upheld the counting of mail-in ballots postmarked by election day but received thereafter. The Trump administration argued that only votes received by election day could be counted, invoking (as is the president’s wont) the largely chimerical prospect of voter fraud. Many observers of the oral argument expected the Court to rule with the president, and the case raised difficult questions about what constitutes an “election.” The Court ultimately sided against the president. In short, these were all close cases, and if the Court were merely seeking to do Trump’s bidding, it could have ruled his way in all of them.
Many skeptics of the Court’s independence cite the administration’s lopsided winning percentage on the emergency docket. The Court has granted temporary stays of lower court orders in major disputes involving his efforts to halt USAID funding, fire agency heads, decimate agency staffs, and subject people in Los Angeles who look Latino or speak Spanish to forcible stops by ICE agents. But here, too, the story is complicated. The Court has denied the administration’s requests for stays, not only in the National Guard and Lisa Cook cases but also with respect to Trump’s effort to deport Venezuelans without hearings under the Alien Enemies Act and his foot-dragging in bringing back Kilmar Armando Ábrego García, an erroneously deported Salvadoran.
In addition, as the Harvard Law School professor Jack Goldsmith has pointed out, Trump’s relatively high win ratio on the emergency docket is partly attributable to the fact that Solicitor General John Sauer has been strategic about which lower court rulings he asks the Supreme Court to stay.2 Lower federal courts have issued at least 150 injunctions against the Trump administration, including ordering the Kennedy Center to remove his name from the building’s official title, blocking efforts to limit mail-in ballots and subpoena voter records, overturning the defunding of National Public Radio and the Public Broadcasting Service, barring the administration from denying funds to Harvard, and nullifying its efforts to punish law firms Trump doesn’t like. On one legal issue alone, whether the administration can detain immigrants without a bond hearing while their removal cases are pending, more than four hundred judges have said no and ordered bond hearings or release for more than 10,000 foreign nationals. The solicitor general has not sought emergency Supreme Court review in any of these cases. Had he done so, the administration’s win–loss ratio would look very different.
But while the Court has demonstrated its willingness to enforce limits against Trump, it recognizes few limits on its own power.
Read the full article on the Review’s website here.
From the Archives: The Roberts Court
Duncan Hosie on the Court’s sanctioning of ICE raids (2025)
David Cole on how the Court bends the rules to get their desired results (2025)
Noah Feldman on why the fate of the country largely depends on the courts (2025)
Laurence H. Tribe on the Court’s inconsistencies in its Dobbs decision (2022)
Cass R. Sunstein on the Court vs. the administrative state (2022)
Annette Gordon-Reed on the leaked draft of Alito’s Dobbs opinion (2022)
