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In the month since his return to office, President Donald Trump has made extensive use of executive orders (EOs) to turn his campaign promises into reality. From signing an order pausing all foreign aid, to banning trans women athletes from participating in women’s sports, Trump has not shied away from testing the reach of the EO. Federal courts, however, have blocked a number of these measures, including the orders on birthright citizenship and Trump’s efforts to freeze federal funding. In response, Vice President JD Vance and Department of Government Efficiency (DOGE) head Elon Musk have shown defiance to court orders, criticizing the supposed overreach by the courts and calling for the impeachment of justices who have halted Trump’s agenda. As calls have grown for Trump to ignore these warnings, some scholars warn that doing so could create a constitutional crisis. As such, it’s likely that the challenges from the executive branch may eventually fall into the hands of the Supreme Court. Luckily for those fearing the worst, the Court may be Trump’s biggest check in his second term.
The court hasn’t been particularly favorable to liberals in recent years, handing a series of detrimental decisions that overturned the federal right to an abortion, disposed of the Chevron doctrine, limited the EPA’s ability to mandate reductions in carbon emissions, and dismantled affirmative action. As such, many have grown pessimistic about the politicized nature of the court, worrying about upcoming decisions on racial gerrymandering, the ability of the government to regulate “ghost guns,” and gender-affirming care for minors. However, while the court isn’t going to make an ideological 180 in the next four years, they’re also not going to give Trump free rein to do whatever he wants.
For any given case, at least five justices will have to vote to uphold a federal court decision. Based on the ideological composition of the court–six conservative justices to three liberals–some may be quick to foretell doom. Don’t let the pessimists fool you, however–it’s a misnomer to say this is a 6-3 conservative court; it’s better characterized as a 3-3-3 court split between liberals, institutional conservatives, and hard-line conservatives. Chief Justice John Roberts, along with Associate Justices Brett Kavanaugh and Amy Coney Barrett–the Court’s institutional conservatives–have all shown a willingness to compromise. Throughout the 2022-2023 session, the justices agreed with members of the liberal bloc about 80% of the time in non-unanimous decisions. As such, the odds of them moving to uphold the Trump-restricting decisions of the lower-level courts–due to institutional concerns–are better than cynics may expect.
In any given case, liberal Associate Justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor are surefire votes against Trump. The set of issues that the liberal justices see eye-to-eye with him on are few and far between. Among the conservative bloc, there are four justices who could reasonably make up the other two votes needed. Which two justices are most likely to break off is largely dependent on the issue, however.
On Trump’s budget tweaks, for example, the two conservative justices most likely to join the liberal justices in striking them down are Roberts and Kavanaugh. As several former secretaries of Treasury have pointed out, Roberts has previously written against executive overreach on financial affairs, arguing that “no area seems more clearly the province of Congress than the power of the purse.” Similarly, Kavanaugh wrote explicitly against it, saying that “Even the president does not have unilateral authority to refuse to spend the funds.” From cutting USAID to everything to do with Musk’s DOGE, expect the court to strike down these efforts to restructure the executive branch.
On a ruling regarding birthright citizenship, hardline conservative Associate Justice Neil Gorsuch could prove to be an unlikely ally for liberal justices. In April 2022, Gorsuch’s concurring opinion in United States v. Vaello-Madero called for the overturning of the Insular Cases, a set of rulings from the Spanish-American War asserting that constitutional rights do not fully apply to citizens of incorporated U.S. territories. Gorsuch’s decision to explicitly critique the rulings is noteworthy, and could signal that he may adopt a broad interpretation of jurisdiction (at least territorially) in a ruling on birthright citizenship. Similarly, the precedent-focused Roberts will likely vote in favor of birthright citizenship, a principle from the 14th Amendment that has been upheld in Dred Scott v Sanford and United States v Wong Kim Ark.
Expect Gorsuch and the chief justice to once again come together for any ruling relating to same-sex marriage or LGBTQ+ rights. For Gorsuch, his majority opinion in Bostock v. Clayton County, a 2020 case that ruled against workplace discrimination based on sexual orientation, may provide a preview on how he could approach similar cases that may arise in the coming terms. In his opinion, Gorsuch argued that “It is impossible to discriminate against a person for being homosexual or transgender without discriminating ... based on sex.” This ruling, which Roberts joined him on, could provide a framework for how the two justices would treat similar cases of discrimination by Trump.
Additionally, while Roberts dissented in the original Obergefell v. Hodges ruling, which legalized same-sex marriage, his respect for precedent might motivate him to cast a vote to uphold the ruling, should a challenge come before the court. A defining feature of the chief justice is his ability to put precedent before ideology, as displayed in his vote to support upholding Mississippi's 15-week abortion ban, but opposing the full overturn of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization.
If the decision involves precedent or could impact the court’s credibility as an independent body insulated from political pressures, expect the institutional conservatives to step in. Roberts’ long-standing focus on the court’s credibility and legal integrity has been reinvigorated in recent years, with the chief justice reiterating the vitality of judicial independence in his 2024 end of the year report.
This sentiment seems to be echoed by Associate Justice Amy Coney Barrett, who recently chose to recuse herself from a case involving her alma mater, Notre Dame. While not as much of an institutionalist as Roberts, Barrett has shown a respect for the court’s reputation, as well as a desire to not be seen as a political pawn who only serves to advance Trump’s agenda. In cases like Fischer v. United States, which dealt with the applicability of provisions in the Sarbanes–Oxley Act against participants in the January 6th insurrection, Barrett surprised observers by breaking with her conservative peers. Instead, she joined Sotomayor and Kagan in a dissenting opinion that called for a broader interpretation of the statute to prosecute individuals at the attempted coup d'état. Writ large, she was the most likely conservative justice to vote for a liberal outcome in the 2023-2024 term (a title that has historically belonged to Roberts). Beyond that, Barrett has voiced support for a binding ethics code for justices on the court. The move may be an indirect dig at fellow conservative Associate Justices Samuel Alito and Clarence Thomas, who have come under fire for failing to disclose millions of dollars of luxurious gifts from Republican donors. As such, while Barrett voting with the liberal bloc is by no means a guarantee, it certainly isn’t out of the question.
Similarly, Kavanaugh has proven remarkably similar to Roberts, voting with him 95% of the time during the 2022-2023 term. Kavanaugh voted with Roberts and the liberal justices to uphold a test to determine the existence of discriminatory voting rules in Allen v Milligan, and took a more liberal interpretation of the 4th Amendment’s usage of “seizure” in Torres v. Madrid. While both Kavanaugh and Barrett have broken with Roberts on key issues, such as abortion, they have relatively stayed in line, voting with him more often than they voted with any other individual.
The bloc has moved together to prevent potential executive power grabs before, such as in Moore v. Harper, where they voted against giving state legislatures unregulated power to set the rules for federal elections in their own states. Under a different interpretation, allowing state legislatures to have unchecked power over federal election laws could create a situation where states with Republican-controlled state legislatures hand over their electoral votes won by a Democrat (e.g. Kamala Harris) to a Republican (e.g. Donald Trump). This concept, known as the independent state legislature theory, raised concerns from some experts about the implications for American democracy. The bloc, however, recognizing the risk at stake, voted to reject the ideal. In similar cases that may bring into question the Court’s credibility, expect any permutation of Roberts, Barrett, and Kavanaugh to join the Court’s liberals to uphold the lower court.
While Barrett and Kavanaugh have mostly followed Roberts and his respect for precedent, Gorsuch–who isn’t motivated by the same institutional concerns–has charted his own course, producing a number of distinctive opinions over the years. Although Gorsuch is a hard-line conservative, most frequently aligning with Thomas and Alito, he’s shown a willingness to break from Trump on hot-button issues like immigration, indigenous sovereignty, and (as mentioned) LGBTQ+ rights. In his nomination, he noted a willingness to break from the president if the law necessitates it. He also harbored disdain for political name-calling by a president to a justice following an unfavorable decision–a sentiment shared by Roberts. He exercised this independence, voting with Kavanaugh and the court’s liberal justices to have Trump release his tax records, much to the president’s chagrin. As such, while Trump appointed Gorsuch, Kavanaugh, and Barrett, assuming the three’s loyalty to the president exceeds their legal integrity is a faulty speculation.
While Thomas and Alito could vote to solidify a unanimous decision, they don’t share the same institutional concerns that motivate Roberts, Kavanaugh, and Barrett, nor do they share the motivations behind Gorsuch’s track record of decisions. Instead, they tend to provide originalist decisions, adopting a stricter reading of the Constitution that usually bodes well for Republicans. That being said, as a whole, the Court is not as partisan as reporting makes it out to be, despite having a few high-profile, ideologically-bending decisions in recent years. Indeed, half of decisions in the 2022-2023 term were unanimous. Even polar opposites, like Sotomayor and Alito, have still ruled together in non-unanimous decisions more often than they did not.
Furthermore, plenty of recent decisions have involved surprising majorities. Mallory v. Norfolk Southern Railway Co, which dealt with the Due Process Clause of the 14th Amendment, had Justices Thomas, Alito, Sotomayor, Gorsuch, and Jackson in the majority and Roberts, Kagan, Kavanaugh, and Barrett in the dissent. Similarly, in National Pork Producers Council v. Ross, which discussed whether the Interstate Commerce clause could allow California to impose anti-animal cruelty standards on exporters from outside the state, had Sotomayor, Kagan, Thomas, Gorsuch and Barrett in the majority, and Roberts, Kavanaugh, Alito, and Jackson in the dissent. Only 8% of decisions from the 2022-2023 term were 6-3 across ideological lines. The depiction of the court as a solely political entity is wholly inaccurate.
As the president tests the limits of executive power, the Supreme Court may prove to be the ultimate check to Trump’s more radical and destructive impulses. While Trump appointed a third of the justices on the court, they aren’t his cronies, and will instead demonstrate a commitment–albeit a varying one–to the rule of law and preservation of credible institutions. As Trump rebuilds the government and redefines what it means to be president, the Supreme Court has the opportunity to be the safeguard that U.S. democracy needs to endure a second Trump administration.