Outside the Beltway

SCOTUS’s Last Chance to Save the Constitution

The term which kicked off this week wil decide whether we effectively have a king.

James Joyner · Tuesday, October 7, 2025 · 6 comments

Yesterday’s report by NPR’s Nina Totenberg, “Supreme Court term will tackle executive power, executive power and executive power,” assesses the stakes quite well.

The U.S. Supreme Court opens a new term Monday, which promises to be hugely consequential and focused in large part on how much power the Constitution gives to the president.

Among the issues already on the court’s docket: a case that could end what’s left of the landmark Voting Rights Act; a case that could do away with one of the few remaining laws that limits campaign fundraising; a challenge to the Trump tariffs; a challenge to his firing of independent agency commissioners before their fixed terms are completed; and much much more.

Indeed, coming soon is likely to be the unanswered question from last term: Did President Trump exceed his authority when he issued an executive order barring a constitutional provision that guarantees automatic citizenship for every child born in the United States.

Since Trump took office for a second term, the conservative court’s 6-to-3 majority has been rocking the boat big time. In just eight months, it has broken all records for granting a president’s wishes on the “emergency docket.”

By the end of last week, the court had granted 20 of Trump’s requests to block lower court orders opposed by the administration. In contrast, the court ruled against the administration in these emergency cases just three times.

“The granting of these emergency applications creates a feedback loop and the more they get granted the more incentive the solicitor general has to seek additional emergency relief in many cases,” observes Donald Verrilli, who served as solicitor general for five years in the Obama administration.

Technically, these decisions to halt lower court rulings are temporary, because the court did not hear arguments in the cases, nor was there full briefing. Instead, as befitting the “emergency” title, the court simply made a temporary decision, but in most cases it gave no explanation at all for its ruling.

Now, some of these cases are back at the high court to be heard on the merits. That means the court will have full briefing and arguments and it will spend months putting its conclusions on paper where they can be read by all.

[…]

At the same time, though, in many of the cases where the court intervened quickly, the temporary intervention was a death knell for the cases — the Education Department is already decimated, the Trump takeover of private Social Security records is complete; Democratic commissioners at previously independent agencies have been fired. In addition, time has expired for spending money previously appropriated by Congress, so for all practical purposes, not only is the money gone, so too are the programs that the money was meant to fund.

Among the big cases that are already back for a full hearing this term are those that strike at the heart of how the government is structured. Although Congress set up the system of independent regulatory agencies a century ago, the court this year has allowed Trump to fire agency commissioners at will, the only exception, so far, being the Federal Reserve Board of Governors.

If the President can fire the heads of independent regulatory agencies at will, replacing them with cronies, then they are not independent regulatory agencies. If the President can redirect Congressional appropriations at will, then he, not Congress, has the power of the purse. If the President can ignore the plain language of the Constitution and generations of Supreme Court precedents, then Chief Justice Marshall’s famous proclamations that “a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument” and “It is emphatically the province and duty of the judicial department to say what the law is” are null and void.

Totenberg closes with this:

Ultimately, says William Baude, a law professor at the University of Chicago Law School, the question is whether the court “can convince the country that it would be exercising its discretion the same way if it were Joe Biden or Kamala Harris doing things that are the legal equivalent” of what Trump is doing now.

Baude, whom I’ve been following since his days as a blogging undergrad under Dan Drezner’s tutelage at the University of Chicago, is pretty staunchly conservative. Among his other accolades, he clerked for Chief Justice Roberts. His question is the right one and, sadly, I have little confidence in the integrity of the justices on that front.