U.S. Supreme Court
Is it as divided as it seems?
These two things are a solid start, but the most important thing we can do to restore faith in all our sacred institutions is to make sure everyone gets the facts about them – instead of the usual political propaganda.
These days, for example, the prevailing narrative from the political Left is that the conservative majority on the Supreme Court is running roughshod over the left-leaning minority, creating a bitterly divided Court. However, the facts don’t necessarily support this.
Although cultural topics that are typically viewed as partisan get the most attention (i.e., abortion, gay marriage, transgender rights, religious liberty), the Wall Street Journal reports that, in the Supreme Court term that concluded at the end of June 2025, only six cases overall – or 9 percent – resulted in the liberal Justices dissenting as a bloc (resulting in an ideologically split 6-3 outcome). In only four cases – or 6 percent – there was an ideological split in the other direction, with Justices Thomas, Alito and Gorsuch dissenting as a bloc.
Given the panicked chatter from the Left, it may also come as a surprise that 42 percent of the rulings in the last term were unanimous. These decisions included a ruling to eliminate the “background circumstances” test for reverse discrimination claims under Title VII; a decision that found Wisconsin was wrong to deny a tax exemption to a Catholic Charities nonprofit; a decision that constrains lower-court judges who tried to intervene in federal environmental reviews; a decision that said American victims of terrorism are not prevented from suing the Palestine Liberation Organization in American courts; and upholding a law that effectively banned TikTok in the United States unless it is sold by its Chinese parent company.
Yet another surprise may be that Justice Elena Kagan – one of the Court’s most liberal Justices – was in the majority of the non-unanimous outcomes 70 percent of the time, while super conservative Justices Clarence Thomas and Samuel Alito were each at 62 percent (tied with Justice Sonia Sotomayor). Justice Neil Gorsuch clocked in at 61 percent.
… and then there is this. In the Supreme Court’s term ending in July 2025, the Justices repeatedly reversed the U.S. Court of Appeals for the 5th Circuit, which is in New Orleans and covers Texas, Mississippi and Louisiana. This is significant because the 5th Circuit is widely considered to be one of the most conservative appellate courts – if not THE most conservative appellate court – in the entire nation. The Court overturned 76.9 percent of the 5th Circuit’s rulings – a stinging rebuke of its performance – including rulings involving ghost guns, the Affordable Care Act, and an $8 billion fund that provides Internet service to rural and poor communities.
Another narrative coming from the political Left is that the conservative majority on the Court is making decisions specifically to do the bidding of Donald Trump. However, the facts don’t support this either.
Don’t misunderstand, we absolutely believe Donald Trump wants the Court’s help in making him a king. Don’t believe us? Just ask him.
On February 2025, he posted, “CONGESTION PRICING IS DEAD. Manhattan, and all of New York, is SAVED. LONG LIVE THE KING!” – along with a picture of himself wearing a crown. Four days before, he had posted the quote, “He who saves his Country does not violate any Law,” a quote largely attributed to Napoleon, a dictator who restricted freedom of speech, press, and women’s rights; re-imposed slavery; empowered a greedy nobility; stole elections; and literally crowned himself emperor. No one ever excused this man of being subtle.
After his first term, Americans could be forgiven for thinking his decisions had been a one-off made by a rookie president, or maybe they didn’t even know about them at all. But after the 2024 campaign, no one can say they didn’t know his intentions because he certainly wasn’t shy about telling the world exactly what they were.
On the 2024 campaign trail, for example, he said he would “use the president’s long-recognized Impoundment Power to squeeze the bloated federal bureaucracy for massive savings” – which basically meant he planned to refuse to spend money Congress has appropriated if he didn’t like what they appropriated it for. Never mind that, far from this being a “long-recognized” power, Congress severely limited this type of scheme during the Nixon administration.
So, it shouldn’t have come as a surprise to anyone that, in his first year alone, he did – or tried to do – the following: unilaterally impose import taxes; hold migrants at Guantánamo Bay; abruptly fire civil servants, government watchdogs, independent agency members and a Federal Reserve member; bypass the confirmation process; seek to end birthright citizenship; dismantle/disrupt/destroy government agencies; target law firms, universities, and students over speech he didn’t like; use troops on domestic soil; federalize the National Guard; centralize control over independent agencies; direct criminal investigations; expedite deportations; order military boat attacks; seize Venezuela’s leader; and bomb Iran.
His “throw everything at the wall and see what sticks” approach led to the actions and activities of the Trump/Vance administration dominating the Supreme Court’s time, energy, press and emergency docket in 2025. At the end of the year, Just Security – an independent, nonpartisan daily digital law and policy journal based at the Reiss Center on Law and Security at New York University School of Law – was tracking 552 legal challenges related to Trump/Vance administration executive actions (214 cases were still awaiting a court ruling).
While the Trump/Vance administration has not fared so well in the lower courts, they have been on somewhat of a winning streak at the Supreme Court. In fact, while federal district courts ruled against the Trump/Vance administration over 94 percent of the time in the first half of 2025, the Supreme Court did the exact opposite, siding with the administration 94 percent of the time.
Unsurprisingly, many of the Court’s decisions have caused outrage among Democrats, feeding directly into the we’re going to lose our democracy because the U.S. Supreme Court is doing the bidding of Donald Trump narrative. But personally, we don’t think that is what’s really going on here.
What’s really going on is that many Democrats are confusing losing our democracy with just plain ‘ol losing. Just because you don’t agree with a Supreme Court decision doesn’t mean your way is better, or that our entire democracy is about to crumble. It more likely means that the Justices on the current Court take a more originalist and/or textualist view of legal questions than you do.
< An originalist is a person who interprets the U.S. Constitution in a way that tries to follow how it would have been understood at the time it was written. A textualist is a person who interprets the Constitution by the ordinary meaning of the text, setting aside factors not in the text itself and rejecting considerations like intent. A living constitutionalist is someone who believes the Constitution’s meaning isn’t fixed but evolves with society. A living constitutionalist considers contemporary values and circumstances. >
When it comes to Supreme Court decisions, people get so caught up in the topic of the case that they forget there are also underlying legal questions involved. Take abortion, for example. The 2022 Dobbs v. Jackson Women’s Health Organization decision returned authority to the states after the majority opinion found that the right to abortion isn’t protected by the 14th Amendment’s Due Process Clause. This meant that the Reserved Powers Doctrine, rooted in the Tenth Amendment, now applied.
This is enormously relevant because, regardless of the topic, most originalists and textualists strongly support federalism as laid out in the Tenth Amendment and embrace a concept known as ordered liberty. Ordered Liberty suggests that individual freedom exists within a framework of established laws, traditions, and social order, not as absolute autonomy – essentially balancing individual freedom with societal order.
So, while it may be true that most of the conservatives on the Court don’t support abortion in their personal lives, it may also be true that the abortion procedure itself didn’t fully drive the Dobbs decision.
And it may also be true – personally, we think it’s 100% true – that the current decisions being made by the Supreme Court have nothing at all to do with Donald Trump the person. In fact, our guess is that most of the Justices can’t stand him (we've actually heard this from several of our friends in “the know”). Rather, the current decisions being made by the Supreme Court are based on the individual Justice’s approach to interpreting the United States Constitution.
Obviously, the Trump/Vance administration is fully aware of each Justice’s proclivities, which is why Donald Trump chose Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett in the first place (remember Democrats, losing elections has huge consequences).
The Constitutional approach of these three Justices – together with Clarence Thomas, Samuel Alito and Chief Justice John Roberts – are the main reason the Trump/Vance administration feels so empowered to test the scope of Article II, Section 1, Clause 1 (the Vesting Clause) that says “the executive power shall be vested in a President of the United States of America” – embracing a concept called the unitary executive theory. The unitary executive theory says the president of the United States has sole authority over the executive branch.
In 2020, in the majority opinion for Trump v. Mazars, Chief Justice Roberts wrote that the president is “the only person who alone composes a branch of government.” Many people used his words as tea leaves to predict what the Supreme Court would do amid the Trump/ Vance administration’s unprecedented power grabs (this is also a huge reason for the Democrats’ we’re going to lose our democracy because the U.S. Supreme Court is doing the bidding of Donald Trump narrative).
… but Justice Roberts’ words weren’t necessarily wrong. It is a fact that Article II of the Constitution says, “the executive power shall be vested in a President of the United States of America.”
Of course, for some people, that short sentence is screaming for clarity. What does “executive power” mean? Does it have any limits? If so, what are they?
On the other hand, if you are an originalist of a textualist, you take that sentence more at face value. That is why the Supreme Court, in the case of Trump v. Slaughter, seems poised to allow the president to fire members of the Federal Trade Commission, even though it’s ostensibly an “independent” agency.
< Sidebar: There is another issue at play in this case. In 1935, the Supreme Court strengthened the concept of the “independent” agency in the Humphrey’s Executor v. United States decision, which held that the president of the United States could only remove Federal Trade Commission Commissioners for “cause.” Many people believe that this effectively established a quasi-fourth branch of government, empowering agencies that often operate without proper oversight and accountability and where unelected employees not only make but regulate and enforce laws. The current Court seems ready to correct this, not on behalf of Donald Trump, but to rebalance the separation of powers and reestablish accountability. >
Fortunately, the Court has signaled it exempts the Federal Reserve from this since it’s a “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States” – a decision that would be a huge blow to the Trump/Vance administration’s attempt to takeover and control the Fed.
If you think about it, the cases the Trump/Vance administration has “won” or may “win” in the Supreme Court are mostly administrative in nature – like being able to fire members of independent federal agencies; the ability to temporarily access sensitive Social Security data; and temporality freezing federal grants and contracts.
But that makes sense when you think of those decisions in terms of the sentence, “The executive power shall be vested in a President of the United States of America”
However, there are several examples of the Supreme Court going against the fervent wishes of President Donald Trump.
For example, a major setback came at the end of 2025, when the Court said it would not allow President Trump to deploy the National Guard to Chicago, at least for the time being. The unsigned order said that the president’s authority to federalize the National Guard likely only applies in “exceptional” circumstances: “At this preliminary stage, the government has failed to identify a source of authority that would allow the military to execute the laws in Illinois.”
Another massive blow to President Trump came on February 20, 2026, when the Supreme Court ruled 6-3 that his global tariffs were illegal, repudiating a signature White House initiative. In the end, the Court rejected the idea that the president had broad authority to impose sweeping tariffs under the International Emergency Economic Powers Act (IEEPA), with Chief Justice Roberts saying, “the president’s assertion of authority was “extravagant by any measure.” Accepting the legal arguments presented, Roberts continued, “would replace the longstanding executive-legislative collaboration over trade policy with unchecked presidential policymaking.”
Listen, we get that many of Donald Trump’s actions are frightening, and we also worry about the long-term effects many of his decisions will have on our democracy. Surely that is crystal clear by now.
But the idea that, since Donald Trump is such a “danger” to this country, we have the right to fight back with anything and everything we have at our disposal – even if it means sacrificing a few basic rules of our own here and there – is even more dangerous than he is. The only thing more destructive than having a president with autocratic tendencies is to overcompensate for him. When it comes to preserving democracy, two wrongs do not make a right.
Take the case of Trump v. United States, a case the Supreme Court ruled on in July 2024 where Donald claimed he could not be prosecuted for his official acts as president, and that a former president cannot be prosecuted unless he has first been impeached by the House and convicted by the Senate. The specific question before the Court was: Does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office, and if so, to what extent?
In a 6-3 decision, split along ideological lines, the Supreme Court ruled that presidents are entitled to “presumptive immunity” from prosecution for all “official” acts, but not for “unofficial” ones. The high court left it in the hands of the lower court to decide whether Trump was acting “officially” or “unofficially” when he challenged the results of the 2020 presidential election.
Well, it goes without saying that Democrats went berserk, saying that the Supreme Court was obviously in Donald Trump’s “pocket” and that they had essentially made him “a king.” President Biden said that “this nation was founded on the principle that there are no kings in America. Each of us is equal before the law” – but that had now “fundamentally changed.”
Senate minority leader Chuck Schumer (D-NY) chimed in, saying: “This disgraceful decision by the MAGA Supreme Court – which is comprised of three justices appointed by Mr. Trump himself – enables the former President to weaken our democracy by breaking the law.” In her dissent, Supreme Court Justice Sotomayor went as far as to write that the ruling reinvented post-presidential immunity “through brute force,” and that it “makes a mockery of the principle” that “no man is above the law.”
These reactions are ridiculous. That IS NOT what the Court did in the least. Chief Justice Roberts was 1000% right when he said that Justice Sotomayor’s words “strike a tone of chilling doom that is wholly disproportionate to what the court actually” did. Apparently, Democrats believe the Supreme Court should have ruled on whether Donald’s actions in this case were “official” or “unofficial,” which wasn’t the question before them.
Unfortunately, the same pattern emerged after the Supreme Court, in Trump v. CASA, significantly limited the power of federal courts to issue nationwide injunctions – a decision Justice Ketanji Brown Jackson called “an existential threat to the rule of law” that created “a zone of lawlessness within which the executive has the prerogative to take or leave the law as it wishes,” where “all bets are off.”
It’s important to remember that, even though this case involved birthright citizenship, the Court didn’t address the constitutionality of President Trump’s Executive Order to end it. The decision they made was specifically about what the proper role of the federal courts are within our constitutional system.
Based on their horrified reactions to the ruling, the political Left evidently believes that universal injunctions – which are court orders that halt the enforcement of government policies for everyone across the country, not just the parties involved in any specific case – are a tool that should be used to provide a check on the Executive Branch (at least as long as Donald Trump is president).
But it’s not the job of federal courts to conduct general oversight of the Executive Branch. The role of federal courts is to resolve cases and provide relief to plaintiffs consistent with the authority given to them by Congress. All the Supreme Court did was confirm that nationwide injunctions give individual judges, particularly at the district court level, outsized power – which they do.
It’s also important to remember that, at the same time they made this decision, the Court paused Trump’s birthright-citizenship order for thirty days, giving potential challengers time to block the order in one of several other ways.
One way was to reframe the legal challenge as a class-action lawsuit that sought to protect all children born to families without permanent legal status (class action lawsuits allow large groups of people who have the same issue a chance to come together and sue as a group. If a judge sides with the group against a federal law or policy, the judge can then issue a binding order that protects everyone in the group from being subject to the law or policy).
… which is exactly what happened. Within hours of the Court’s decision, one of the groups challenging Trump’s birthright citizenship policy refiled it as a class action and, within two weeks of that move, U.S. District Judge Joseph Laplante of New Hampshire approved a request to certify a class-action lawsuit against the administration on behalf of U.S.-born children or future children whose automatic citizenship could be jeopardized by the president’s executive order. Then he placed a new nationwide block on Trump’s efforts to end birthright citizenship.
Let’s get real here. After Trump v. United States – the case where the high court left it in the hands of the lower court to decide whether Trump was acting “officially” or “unofficially” when he challenged the results of the 2020 presidential election – Democrats were lashing out, not over the merits of the case, but because Donald’s attorneys were able to delay his trial until after the 2024 election. Meaning they were mad that the Supreme Court didn’t play better politics – WHICH IS EXACTLY WHAT THEY SAY REPUBLICANS DO!
They were outmaneuvered yet again, and it infuriated them. So, what do they do? They start disparaging the United States Supreme Court, which undermines our institutions and cause people to lose trust in our system – WHICH, AGAIN, IS EXACTLY WHAT THEY ACCUSE REPUBLICANS OF DOING!
Make no mistake, Democrats doing things like this is every bit as dangerous as anything Donald Trump has said or done regarding the Supreme Court or anything else. Undermining our institutions is undermining our institutions, regardless of how pious and patriotic you try to sound when you do it.
Check out 1787's Plan of Action for the Supreme Court here!