Under Chief Justice John Roberts, the current US Supreme Court has become one of the most partisan in American history. This judicial devotion to party could not come at a more dangerous time, as President Donald Trump endeavors to amass more power for the presidency than any prior chief executive.
The Supreme Court has always been ideological but it has not always been overtly partisan. For example, Justice Owen Roberts, a Republican, played a pivotal role in saving Democratic President Franklin Delano Roosevelt’s signature New Deal programs.
Two decades later, a Supreme Court with nine Democrats told President Harry Truman (a Democrat) that he could not seize the nation’s steel mills during the Korean War in a landmark case enforcing our country’s commitment to checks and balances.
Since that time, and until quite recently, the Court has, to varying degrees, issued country-changing decisions including justices from both political parties. The 7-2 majority decision in Roe v. Wade included four Republicans, and when that decision was partially affirmed in 1992, there were seven Republicans on the Court.
The conservative Rehnquist Court issued a number of liberal decisions, such as several gay rights opinions authored by Republican Justice Anthony Kennedy, and affirmative action cases authored by Republican Justice Sandra Day O’Connor. Democrat Justice Stephen Breyer at times voted with Republican justices in criminal rights cases.
Those days are gone. The Roberts Court’s strongest priority is supporting the Republican Party. All of the GOP’s dominant themes over the last few decades, with only one exception, have been ratified by the Roberts Court (the lone outlier being same-sex marriage, and even that right may be in jeopardy).
The Roberts Court has held that abortion is no longer a constitutional right, affirmative action is no longer permissible, and gun rights must be emphasized and strengthened. The Republican justices have zealously protected religious plaintiffs by lowering the wall of separation between church and state, and adopted the “Unitary Executive Theory,” moving us closer to an “Imperial Presidency.” The Court has overturned important campaign finance reform laws at both the state and federal levels and prohibited Congress from protecting the voting rights of racial minorities. The justices appointed by Democratic Presidents dissented in all these cases, and there have been no defections by any of the conservative justices.
This almost complete loyalty to the GOP comes at a time when President Trump’s policies are threatening our democracy and representative government by, among other things, weaponizing the Department of Justice, firing the heads of independent agencies, using the military for domestic political purposes, and federalizing state national guard units. The Republican controlled Congress has not pushed back at all on the President’s agenda.
What is at stake are the twin pillars of American democracy that for so long have defined the United States and staved off tyranny: federalism and separation of powers. In the words of the “Father of the Constitution,” James Madison, the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Although Madison was discussing the separation of powers at the federal level, the same idea applies to federalism. As Justice Anthony Kennedy often pointed out, the founding fathers split the “atom of sovereignty” between the national government and the states to diffuse power in order to better protect the rights of the American people.
Both separation of powers and federalism are being threatened by many of the President’s policies. He does not want Congress to be able to insulate the heads of independent agencies from arbitrary Presidential terminations. He has thwarted lower court judicial orders and castigated federal judges. He has issued broad Executive Orders at an unprecedented rate often doing the work of Congress. And he is using military force in American cities against the will of local and state leaders. All of these issues are either before the Court this term or likely will be in the next few years.
Our country’s essential identity is a nation devoted to the maintenance of the rule of law through separation of powers and states’ rights—theories traditionally embraced by the Republican Party. But the current GOP seems to have no use for these critical checks on arbitrary governmental power.
Will the Supreme Court side with text, tradition, history, and legal precedent, or will it continue its almost complete devotion to the Republican Party by empowering President Trump to wield new and dangerous powers. The future of America in its current form may depend on the answer to that question. Let’s hope the Roberts Court prioritizes Constitution over party.
Eric J. Segall is the Ashe Family Chair Professor of Law at Georgia State University College of Law, where he teaches courses in constitutional law. He is the author of Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges and a frequent commentator on the Supreme Court for major media outlets.
