When the chief justice of the US supreme court, John Roberts, delivered his bombshell ruling last July granting Donald Trump absolute immunity from criminal prosecution for official acts, he laid out his vision of an expansive presidency. The executive, he wrote, should be “vigorous and energetic”, and free to carry out duties “boldly and fearlessly”.
If that sums up Roberts’ ideal occupant of the Oval Office, then he has certainly got what he wants in the 47th president. In his first month back, Trump has vigorously fired tens of thousands of federal workers; energetically ignored congressional statutes; boldly run roughshod over the constitution; and fearlessly unleashed Elon Musk, the world’s richest man, in a slash-and-burn campaign against the US government.
Trump has done more than that – he has opened a Pandora’s box that might, in time, give the chief justice pause. The president has indicated that he has another target in his sights: the very judiciary over which Roberts presides.
“He who saves his Country does not violate any law,” Trump posted on Musk’s X earlier this month, channeling Napoleon Bonaparte. The comment, combined with overt threats that Trump and his people have made against judges who dare stand in their way, have prompted a question that previously would have been unthinkable: is the president willing to defy the rule of law itself?
“We’ve seen the many ways in which Trump has sought to undermine Congress, and now he’s seeking to undermine the judicial bench,” said Nancy Gertner, a Harvard law school professor. “This is a president who is arrogating to himself the powers of a dictator.”
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For 17 years, until she retired in 2011, Gertner sat as a federal judge in the district court of Massachusetts. There she dealt with the defiance of individual defendants.
“I had people who had been sentenced and didn’t follow the rules of their release, for sure,” she said.
Not once in almost two decades of service, however, did she have to confront a public officeholder openly flouting her authority. “Governmental officials defying the court? It never came up. Literally, never happened.”
Now Gertner is observing Trump’s belligerence towards the courts unfold with mounting concern. “There’s been nothing like this in American history. There have been people who threatened not to obey the law, especially post the civil war, but this is a sustained attack on the courts we haven’t seen before.”
Alarm bells began to ring just a week into Trump’s second term in the White House when the office of management and budget imposed an immediate funding freeze across the federal government. The pause in funding, exceeding $1tn in grants to the 50 states alone, was instantly challenged by several Democratic governors who succeeded in persuading a judge to issue a temporary restraining order demanding that the money continue to flow.
The author of the restraining order, the chief judge in the federal court of Rhode Island, John McConnell, could not have been more clear. He pointed out that Congress, which under the US model holds the “power of the purse”, had assigned much of the money, and that Trump, as executive, had no power to withhold it.
McConnell called the funding freeze “arbitrary and capricious”. He found that it violated the principle of the separation of powers established in the constitution and negated the “will of the people as expressed through congressional appropriations”.
In normal times, that would have been that. The Trump administration would duly have been chastised into suspending the funding freeze.
But a week after McConnell issued his edict, something strange happened. A program run by the University of Washington that treats 250,000 people with HIV and has tested hundreds of thousands of women for cervical cancer was informed that much of its grant was still suspended.
The same story was reported across numerous states. In California, a $500m federal award to fight pollution in Los Angeles remained frozen days after the restraining order was issued. A $118m fund to monitor air quality across states was still inaccessible, as was money for a scheme to help low-income communities take up solar energy.
A pattern was emerging: the Trump administration was ignoring a federal judge’s unambiguous instructions. When it was brought to McConnell’s notice, he was livid.
He issued a second order, 10 days after the first, telling Trump and his appointees to immediately restore all frozen funds. McConnell reminded the defendants, addressing them as he might elementary schoolchildren, that it was a “basic proposition” that “all orders and judgments of courts must be complied with promptly”.
He added tartly that “persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt”.
In the wake of McConnell’s stern second order, large sums of federal money continue to be snarled up, causing ongoing disruption to vital programs nationwide. The New York Times reported that critical biomedical research on cancer and other illnesses remains effectively stalled because of blockages imposed by Trump appointees in apparent flagrant breach of the judge’s command.
On Tuesday, a second judge complained that the Trump administration had conspicuously ignored his court order issued almost two weeks previously. Judge Amir Ali set a deadline of 48 hours for the release of $1.5bn worth of funds that should have been distributed through the foreign assistance agency USAid but was frozen in defiance of his word.
Trump has given mixed messages about his intentions in all this. He has said that he will abide by court rulings, pledging to appeal those with which he disagrees in time-honored fashion.
At the same time, he has made plain his displeasure at being contradicted by judges. That sentiment has been amplified by the vice-president, JD Vance, who notoriously stated that “judges aren’t allowed to control the executive’s legitimate power”.
At worst, the president and his deputy have introduced a note of menace into the conversation. In recent comments from the Oval Office, Trump effectively warned the courts not to interfere in what he claimed was his anti-corruption agenda.
He implied that if provoked he would instigate Department of Justice inquiries into individual judges, saying that it would be a “very serious violation” if they tried to stand in his way. Other top Republicans have talked darkly of impeaching judges who try to rein in Trump’s lawless behavior.
Andrew Clyde, a Republican congressman from Georgia, called for McConnell himself to be impeached on grounds that the Rhode Island judge was a “partisan activist weaponizing our judicial system”.
Such brazen threats dismay Gertner. “There’s no question that the impeachment talk has an intimidation effect. That is deeply, deeply troubling. When the president and his supporters make remarks like that it exposes judges to threats of physical violence.”
Threats of violence aside, Trump’s goading challenges arguably the most important fundamental underpinning of American democracy. In 1803, the then chief justice of the supreme court, John Marshall, delivered a ruling that has come to be seen as critical to the success of the American experiment.
The decision, Marbury v Madison, established that the courts were the final arbiter of the law because they alone had the power to declare congressional statutes unconstitutional. For Jeffrey Toobin, CNN’s legal analyst and the author of a new book, The Pardon: The Politics of Presidential Mercy, the ruling was the most important decision the supreme court has ever made.
“It laid down the bedrock rule that the courts have the last word on what’s constitutional and what is not, on what the government can and cannot do. It is a foundational precept of American democracy, which is why this issue resonates so profoundly.”
Toobin added: “If Trump were to defy a final judgment of the courts, that would scramble understandings that go back literally centuries.”
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John Roberts might not be the obvious person to stand as a bulwark against an authoritarian president seeking untrammeled power. After all, he was the author of the immunity ruling, with its enthusiastic evocation of “vigorous and energetic” executive power.
Sonia Sotomayor, one of the three liberal-leaning justices on the current court, was damning in her criticism of the decision to grant Trump total immunity from criminal prosecution for actions carried out in his official duties. In a dissenting opinion, she said it was “absolutely indefensible”, as it elevated the president to being “a king above the law”.
Roberts’ backing for a mighty executive did not come out of nowhere. He cut his lawyer’s teeth as an enthusiastic participant in the 1980s Reagan revolution, another era replete with radical funding cuts and bonfires of liberal policies.
At the justice department, and then in Ronald Reagan’s White House, Roberts consistently pressed for expanding presidential power at the expense of the other branches of government – including the supreme court which he now leads. Documents released in 2005, the year in which he became chief justice, revealed that he supported gutting the supreme court of its jurisdiction over such essential areas of public life as abortion, desegregation busing and prayer in public schools.
As a young Reagan acolyte, Roberts was scathing of what he called the judicial activism of federal judges, proposing that they should be subject to term limits. “One of Roberts’ crusades from those very early days was for the strong assertion of executive authority,” Toobin said.
Now in his 20th year sitting in the central chair of the supreme court, Roberts no longer advocates for term limits or stripping the bench of its powers. But his court has increasingly embraced what is known as the “unitary executive theory”, which would grant presidents broad authority to run federal agencies as they see fit, free from the inconveniences of congressional oversight and civil service independence.
Several of the rightwing justices – three of whom were nominated by Trump – have already indicated that they would overturn a supreme court ruling dating back to 1935. The 90-year-old precedent, Humphrey’s Executor, has allowed Congress to protect federal agencies from political interference by preventing their leaders from being fired by the president unless the administration can show “inefficiency, neglect of duty or malfeasance”.
Justices Clarence Thomas and Trump-appointed Neil Gorsuch have already said that they would scrap Humphrey’s Executor, while another of Trump’s picks, Brett Kavanaugh, might be expected to join suit. Trump’s third nominee, Amy Coney Barrett, is a little harder to read.
This week the staunch conservative joined Roberts and the three liberal-leaning justices in reinforcing the Rhode Island judge’s order forcing the administration to unfreeze the almost $2bn in foreign aid that had been blocked. Barrett’s role in rebuffing the administration led the New York Times to speculate that she might come to hold the crucial vote in Trump cases.
It also earned her the opprobrium of the Maga crowd, with far-right pundits lambasting her as “evil” and a “closet Democrat”. And yes, Barrett too is now being talked about as a candidate for impeachment.
That the majority of the justices held firm on this occasion against Trump’s provocations, Roberts and Barrett among them, tentatively suggests that at least for now the president will not be given an entirely free pass by the country’s highest court.
And yet, the ferocity of the dissent to the ruling from the four hardliners, Samuel Alito, Thomas, Gorsuch and Kavanaugh, shows that they have by no means given up the fight – and they are but that one vote away from getting what they want. Alito, who wrote the dissent, said he was “stunned” by the decision of the majority, which he called “an act of judicial hubris” and a “self-aggrandizement” of judicial powers.
The foreign aid ruling points to further conflict ahead – between the justices, between the rightwing justices even, and between the court and Trump. Precisely how this will shake down is arguably the ultimate test of our age.
The outcome will only become clearer when the big seismic cases reach the court. So far, the vast dust cloud kicked up by Trump has prompted no fewer than 104 legal challenges, according to the Just Security tracker, with more being lodged each day. Only a handful of those cases will make it to the justices’ desks.
One of the frontrunners for supreme court consideration is the executive order signed by Trump on day one of his second presidential term, 20 January 2025. In it, he had the gall to try to abolish the citizenship rights of American-born children enshrined in the 14th amendment of the US constitution.
Legal experts and judges hearing challenges to Trump’s attempt to bury birthright citizenship have denounced the action as blatantly unconstitutional. Should the case reach the supreme court, as most observers think it will, it seems implausible that a majority of the justices would side with the president in agreeing to such a glaring disregard for the constitution itself.
But then, stranger things have happened.
“Birthright citizenship is embedded in the constitution – it’s unimaginable to me that the court would go along with Trump on that,” the former judge, Gertner, remarked. “But I have to say, the immunity decision last July was also unimaginable to me.”
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Is it possible that the supreme court, the keeper of the judicial flame, would accommodate a tyrant in the making and grant him – at least to some degree – vastly expanded power? The fact that the question is now being asked in judicial circles in itself underlines the seriousness of the moment.
For Toobin, it’s one of the big questions that have yet to be answered in Trump 2.0. “This is a court that is obviously highly deferential to executive assertions of authority,” he said. “But where the limit of that deference lies, we still don’t know.”
Judge Gertner agrees that there is an appetite on the supreme court for a powerful and robust executive, but doubts that even the ultra-right justices want to hand Trump unlimited power. “There are justices on the court who believe in a unitary executive, but that’s not the same thing as an executive that thumbs its nose at Congress and the courts.”
The question of how far the supreme court will go – or how far it will allow Trump to go – has also exercised Amrit Singh, a professor at Stanford Law School who runs its Rule of Law Impact Lab. The lab’s mission is to deploy research and legal tools to protect democracy around the world – including within the US.
With her comparative lens focused on the threat to the rule of law worldwide, Singh can offer some points of comfort. Trump has not thrown down the gauntlet to the supreme court in the categoric way that Jair Bolsonaro, then president of Brazil, openly urged defiance of that country’s top court in September 2021.
Should Trump move in that direction, Singh remains confident that the justices would not cross the line. “I don’t see this supreme court standing by a clear violation of its orders,” she said.
The chief justice himself has indicated that he would firmly resist any such overt defiance. In his end of year report for 2024, Roberts went out of his way to emphasise the importance of an independent judiciary, writing that it remained “one of the crown jewels of our system of government”.
He also scolded politicians who disparage the rule of law. “Within the past few years, elected officials across the political spectrum have raised the specter of open disregard for federal court rulings. Violence, intimidation, and defiance directed at judges because of their work undermine our Republic, and are wholly unacceptable.”
Those are soothing words. And yet Singh is not complacent about the threat. The classic authoritarian playbook that she has studied in other countries – from Bolsonaro to Viktor Orbán in Hungary, or Vladimir Putin’s Russia – is now being followed in the US.
“This is the path to autocratisation unfolding before our eyes,” Singh said.
Already, several federal judges have begun to back off, allowing Trump to go ahead with his arguably unconstitutional actions. Last month, a court gave the green light to 2,000 USAid workers being put on leave, and soon after a separate judge refused to intervene in the White House decision to bar the Associated Press from presidential events.
These are pointillist rulings, relatively pin-like in scale and significance. But over time these dots may fuse into a bigger picture, one that leads Singh to make a startling hypothesis.
Perhaps Trump will not have to go into battle with the courts after all. Not if they give him what he wants.
“From a rational perspective, why would the Trump administration want to openly defy the supreme court when it seems inclined to rule in favor of broad presidential authority in any case?”
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It is perhaps a sign of the critical condition in which American democracy now finds itself that a former federal judge with 17 years experience on the bench is rendered speechless when asked what would happen were Trump to defy the supreme court.
The judge struck dumb was Gertner. She was wargaming with the Guardian how a full-blown constitutional crisis might be triggered.
In this exercise exploring possible crisis events, Gertner imagined that the supreme court had just ruled that Trump had no power to dismantle USAid given that it was founded by congressional statute.
Trump, the theoretical storyline continues, exclaims: “To hell with that!” He raises a proverbial middle finger to the justices by pressing ahead with eviscerating the agency in blatant disregard of their judgment.
The supreme court, its back against the wall, responds by calling out the US Marshals Service. That is the law enforcement arm of the judiciary, which is authorised to take action in cases of contempt of court.
Here’s the rub. The Marshals Service falls under the Department of Justice, now run by the Trump loyalist Pam Bondi, who in turn is held in an iron grip by the president. The idea that she would allow employees under her control acting against the will of the president looks, at least for now, highly implausible.
And so the supreme court, in Gertner’s thought exercise, calls out the marshals, and they in turn follow Bondi’s orders and do nothing. What then?
“I don’t have a sentence after that,” Gertner said. “I just don’t know what sentence comes next. I have no idea.”
Gertner’s stunned silence highlights what might be considered a weakness, even a flaw, in the American system of government. One that was evident even to the founding fathers.
Alexander Hamilton raised the issue when he wrote his seminal 1788 essay on the fledgling judicial system in Federalist paper No 78.
“From the natural feebleness of the judiciary,” Hamilton observed, “it is in continual jeopardy of being overpowered, awed, or influenced” by the president and Congress. The judiciary, he went on, “is beyond comparison the weakest of the three departments of power”.
Hamilton is not the only person to have noticed the judiciary’s fundamental lack of teeth as a result of any independent enforcement mechanism to back up its rulings. Ominously, the vice-president, JD Vance, has grasped this too.
Back in 2021 Vance, then a venture capitalist and book author, was predicting that Trump would be elected for a second presidential term. During a podcast appearance, he conjured up the vision of Trump, back in power, firing “every civil servant in the administrative state” and replacing them “with our people” – a scenario which seemed fanciful three years ago but is all too realistic today.
Vance went on to advise Trump what he should do were the supreme court to try and stop him from turning the US government into a Maga redoubt. He invoked a probably apocryphal quote from Andrew Jackson relating to a conflict in 1832 between the then president and the justices.
“Stand before the country like Andrew Jackson did,” Vance urged Trump, “and say: ‘The chief justice has made his ruling. Now let him enforce it.’”
For Toobin, this marks the ultimate crunch. As he points out, the supreme court is but nine men and women, supported by a staff of fewer than 500.
They are minnows confronted by a shark. And the only weapon they have at their disposal is an etherial one: the consent of the governed upon which this whole teetering edifice stands.
“The supreme court is dependent on the universal assumption that it has the last word on the constitution, and that a president will always honor those rulings. What makes this moment so perilous is that no one knows for sure what happens if he doesn’t.”
