Where Is The Supreme Court’s Red Line?

Trump and the justices are engaged in a delicate dance.

I. The Shift

Liberals and conservatives both agree: the Supreme Court was acting as a roadblock at the beginning of Donald Trump’s administration, and now they aren’t.

Flash back to April and you had conservatives raging against the court and calling Amy Coney Barrett a “DEI” hire in response to rulings against Trump. Chief Justice John Roberts and the president were sniping at each other. Meanwhile, venerable liberal publications like Washington Monthly were asking, “Is the Supreme Court Standing Up to Trump?” (And publications like The New Yorker were answering: “The Supreme Court Finally Takes on Trump.”)

It’s unlikely that question (or answer) would be offered now. “The Supreme Court Just Crowned Trump King—Again,” The Nation declared yesterday. Meanwhile, Trump White House officials have gone from bashing the justices to celebrating on X, “Another SCOTUS Victory!”

Both sides agreeing on something doesn’t necessarily make it true. So I wanted to test this intuition — that the court had started out the year skeptical of Trump, but steadily grown more favorable towards him — against the data, and see if it was accurate.

I put together a dataset of every dispute considered by the full court since Trump’s re-election that involved the president or his policies. (I included the court’s ruling, on January 9, that Trump would have to face a sentencing for his conviction in New York even though he was president-elect, because I found it to be an interesting data point. But if you don’t, and would rather start with cases since his second inauguration, feel free to ignore the first entry.)

We’ll start by grounding ourselves in the data, in order to answer two questions:

• Has there been a shift in how the Supreme Court has handled Trump cases over the past few months?

• Why might that shift have taken place?

II. The Data

The answer to the first question isn’t very difficult. The court has issued 20 Trump-related rulings since the start of the year. (Note: In this dataset, a single case can yield multiple rulings, if the court repeatedly intervened in the same dispute.)

I’ve coded Trump victories as green and Trump losses as red. Rulings without a clear winner, or that gave key victories to both Trump and the litigants opposing him, are denoted with red and green stripes.¹

This is not a very large sample size, but still, the trend is stark. Out of the court’s first 10 Trump-related rulings after his re-election, he won only three outright. The other seven were either losses or mixed rulings.

But, since then, the last 10 rulings — every time the court has taken up a Trump-related case in the past two months — have all gone in his favor.

So, that answers Question 1: yes, there’s been a shift. But it doesn’t help us answer Question 2: Why?

III. The Geometry

Now that we know the Supreme Court’s rulings have moved towards Trump over time, it’s worth revisiting a piece of mine from May, “Trump’s Theory of the Presidency is Failing,” which argued that Trump’s attempts to expand the powers of the presidency have mostly fallen short, in large part because of judges intervening.

That was written right before the red boxes started turning green in the above graphic, so it’s natural to ask whether this take still holds up if the Supreme Court is, indeed, becoming friendlier to Trump.

To answer that question, I think it’s helpful to take a step back and consider a concept that often comes up in conversations about Trump and the courts: the Unitary Executive Theory, or UET. It’s not exactly the Trumpian “theory of the presidency” I was referring to, but it overlaps with it (and doesn’t) in important ways that will help us solve our broader question.

The Unitary Executive Theory is the rare theory of constitutional law that has also been featured in a major Hollywood production, so maybe you heard about it in the 2018 movie “Vice,” a political satire about Dick Cheney. The movie is OK (64% on Rotten Tomatoes), but its explanation of Unitary Executive Theory is even worse.

Here’s the relevant clip:

“Certain legal scholars believe that if a president does anything, it must be legal, because it’s the president,” the movie’s narrator says, by way of explaining UET. “To hell with checks and balances, especially during times of war. This was the power of kings, pharaohs, dictators.”

But that’s a pretty over-dramatic version of what the traditional theory has been. Unitary Executive Theory draws on the “Vesting Clause” in Article II of the Constitution (“The executive Power shall be vested in a President of the United States of America”) to argue that one person (the president) has full control of the entire executive branch.

Proponents of the theory do believe that the president wields absolute executive power in the United States. But that’s different than wielding absolute power.

A guide from Cornell Law explains that “the most controversial aspect of the UET is the President’s removal power. According to the UET, the President can remove any appointed subordinate officials of the Executive Branch,” including those who serve in historically independent agencies within the branch.

This is, indeed, a bold claim relative to how Congress and the Supreme Court have traditionally treated independent agencies. (I touched a bit on that debate in this piece in February.) But, really, if the most controversial part of the UET is that “the head of the executive branch can fire members of the executive branch” — well, sure, you might disagree with it, but it’s not nearly as aggressive as the movie “Vice” (and some real-life commentators) make it out to be.

Trump’s theory of executive power goes a bit farther. The legal scholar Jack Goldsmith, who had a hand in the Cheney application of unitary executive theory during his time at the Bush Justice Department, recently explained to the New York Times columnist Ross Douthat that Trump’s uses of executive power can be split into two categories:

First, vertically down through the executive branch, the administration has taken an unprecedentedly broad view of the unitary executive theory… The basic idea is that the president gets to completely control the executive branch: its decisions, its firings, the interpretation of the law. The president’s views of the law prevail for the entire executive branch, and everyone has to get in line for that. And there have been elements of this before, but this is much more extreme than ever. That’s the vertical dimension.

The horizontal dimension is that they are asserting super broad executive power claims vis-à-vis other institutions that have checkpoints against them, trying to weaken those institutions… The executive branch has basically been attacking Congress’s appropriation power, its core power. It’s been attacking Congress’s traditional ability to determine which agencies are which and how they’re organized. And it’s doing something analogous with courts. It has been extremely aggressive in pushing back against and game-playing with courts.

This will be a helpful dichotomy when considering how the Supreme Court has ruled on specific Trump cases, which we’ll do in just a moment. For our next graphic, I’ve coded each of the 20 cases by the type of power Trump was trying to grab.

Here, we can see the Supreme Court majority seems very willing to adopt the traditional Unitary Executive Theory, siding with Trump in four cases that have allowed him to fire independent agency heads, probationary employees, and, most recently, about half of the Education Department.

The court has also (at least temporarily) sanctioned other basically vertical applications of executive power, giving Trump, as commander-in-chief, a wide berth to decide who can serve in the military (or who can’t serve, more specifically transgender people) and to revokes status from migrants that had only been given by previous presidents. When one president has done something by executive action, they are saying, the benefit of the doubt should be given that the next president can undo it.

In these vertical cases, where Trump has sought to exert control over processes and personnel within the executive branch, he has had a near-perfect record in front of the court. (Even some of the liberal justices have sided with him on some of these cases.)

But here’s the catch.

The court has seemed less willing to adopt what we might call the Christian Bale Theory of Executive Power, the much more aggressive idea — named here for the actor who played not just Batman but also Cheney in “Vice” — that the president can do anything, including actions that impinge horizontally on the other branches of government.

Trump has been repeatedly stymied in due process cases, where he has sought to go around the legal system and deport migrants without proper hearings or review. And in the two times he brought spending cases to the court — when he was seeking to lift lower court orders blocking him from tampering with government funds approved by Congress — he was rejected once in an adverse 6-3 ruling, and scraped by the second time in a 5-4 ruling in his favor (losing Chief Justice Roberts’ vote both times).

Notably, though, since that second case in April, he hasn’t brought another case to the court relating to a spending dispute.

And here we arrive at the explanation for the court’s seeming pro-Trump shift: it’s not so much the court that has changed as the cases Trump has brought to them.

You see, it’s up to Trump to decide which lower court orders blocking his actions he asks the Supreme Court to pause. At the beginning of his term, he seemed to be doing so willy-nilly — but, since his winning streak in May, almost all have been about vertical applications of power.

In a key case in May, the court appeared to give him a green light to carry out executive branch firings, and Trump has taken that leeway the justices have given him and run with it, repeatedly bringing similar cases to them. But after his mixed record with more horizontal cases, like the spending disputes, Trump basically stopped taking them to the justices.

It’s not as if his administration has stopped trying to tamper with Congress’ spending powers, or lower court judges have stopped blocking him. Trump officials currently face lower court orders blocking them from freezing all federal grants and loans, conditioning state transportation funds on compliance with immigration enforcement, and terminating scientific research grants, among other cases.

The Justice Department has opted against asking the Supreme Court for temporary relief in any of these disputes. Similarly, since losses relating to the Alien Enemies Act and Kilmar Abrego Garcia, the administration has chose not to go to The Nine on several immigration cases, including other AEA cases, disputes involving pro-Palestinian students, and other instances where judges ordered them to return improperly deported migrants.

These choices give the appearance of an administration with a winning streak at the Supreme Court, and has led some commentators to ask whether the justices are “appeasing” Trump, ruling in his favor out of fear that he won’t comply with their rulings. But, when taking into account the broader universe of cases the administration isn’t taking to the justices, the more nuanced reality emerges of a complex dance between Trump and the court.

The justices may be, in some ways, appeasing Trump — but he is also, in others, appeasing them, by mostly taking cases to them only when they have signaled he can win them. In disputes where there is reason to believe they might not accept his uses of power, the administration is (for now) not even taking its chances at the high court.

In that way, Trump has succeeded in expanding executive power in one important respect: the ability to fire officials within the executive branch, although that is a power the court had already been leaning towards giving the president. But despite the Supreme Court seemingly siding with him in every case, because those cases only constitute a small fraction of the disputes involving his administration, in all other respects, the presidency remains mostly as Trump entered it.

When Trump has sought to exert power beneath him, within the confines of the executive branch, he has mostly succeeded. But when he has tried to maneuver sideways, getting in the way of the other branches, he’s been much less successful. With the benefit of hindsight, the state of play is more complicated than his theory of power succeeding or failing: his vertical theory of power has won the day, but his horizontal theory of power — which underpins the most aggressive of Trump’s actions — has largely failed or remains untested at the highest level (perhaps out of fear of further failure).

IV. The Corners

Once you break up the Trump cases like this, it’s also much easier to predict future successes and failures before the court.

If you hear about Trump attempting to fire executive branch officials, like in one pending application before the justices on removing members of the Consumer Product Safety Commission, it’s a good bet that he’ll eventually win out. But if you hear about Trump trying to redirect congressionally appropriated funds (outside of the congressionally mandated process), you should be much less sure of his success.

But there are also cases that where horizontal and vertical powers meet, which are harder to predict.

One example is Trump’s efforts not just to remove independent agency heads, but to gut executive departments in ways that threaten their ability to carry out congressionally mandated functions. The Supreme Court has recently taken up some cases in this category, but — consistent with its approach since Trump returned to office — it has done so cautiously.

In Trump v. American Federation of Government Employees last week, the justices ruled that his executive order initiating government layoffs could stand for now — but made sure to note that they “express no view” on any specific government layoffs. Then, a few days later, in McMahon v. New York, they also let specific layoffs (at the Education Department) stand, despite states arguing that the firings would prevent the agency from carrying out its statutorily mandated functions.

Notably, the administration did not argue that the department was not required to fulfill those functions — merely that the idea that it won’t be able to is “hypothetical” and based on “speculation,” which the administration said (and the justices seemingly accepted) could not be the basis of a lawsuit, which would need to show a “cognizable injury.”

The real test, then, will be if a lawsuit emerges that does aim to show — not speculate — that the layoffs have made it impossible for the Education Department to do what Congress has instructed it to do. It will be interesting to see what the justices do then.

Tariffs present another fascinating corner case, where Congress has arguably submitted some of its powers horizontally to the president, but the question, of course, is how much, and whether Trump has tried to seize more power from a co-equal branch of government than is allowed. There is a tariff-related emergency application currently sitting before the justices.

Finally, of course, there is the downstream effects of Trump’s most significant victory before the justices: Trump v. CASA, in which the court sided with the president against the practice of nationwide injunctions. However, the justices also left open several loopholes (such as class action lawsuits) that plaintiffs are now, as was inevitable, trying to climb through. At some point, the justices will likely be asked, if district court judges cannot horizontally block actions like Trump’s birthright citizenship executive order by nationwide injunction, can they do it by class action?

In each of these cases, it isn’t hard to predict who the swing votes will be. For our final graphic, let’s take a look at how each justice has ruled in Trump-related cases so far.

First, some caveats: Every Trump case that has reached the court so far this year has been through the emergency docket, also known as the “shadow docket.” That means a few things for our purposes. First, the justices aren’t ruling on the merits of a Trump action per se: rather, they are ruling on whether a certain Trump action should be allowed to continue temporarily while legal challenges make their way through the courts. (Merits are supposed to be part of the calculation in deciding whether to grant these emergency applications, so they’re not irrelevant, but it’s important to remember that a justice ruling to allow a certain action to continue temporarily isn’t necessarily an indiction that they would allow the action to continue once the merits are squarely in front of them — though it is a hint.)

Second, rulings on the shadow docket go mostly unexplained, which make it hard to say why the justices made one decision or another, and are often anonymous, which mean we don’t know for sure which justices were in the majority and which weren’t.

All that said, I’ve put together a best guess of how each justice came down in these 20 cases, using a simple logic: if a justice did not explicitly express disagreement with the court’s decision (as they often will do when they disagree), I’ve presumed here that they do agree with it.

Therefore, below, if a justice is known to have sided for or against Trump on a case, their box is dark green or red. (If we only know that for sure because of process of elimination in a 5-4 case, their box is marked with an asterisk.²) If a justice can presumed to agree or disagree with Trump based on not expressing opposition to the majority, their box is marked light green or red. The same goes for mixed decisions, which are in light or dark purple.

The justices are ordered by how often they’ve (presumptively) with the president, with a “Trump score” beneath their name. (Mixed decisions are half-points.)

One thing this chart allows us to do is see where each justice has marked their red line with respect to Trump.

On one side, you have Justices Samuel Alito and Clarence Thomas, who appear to have set a red line at giving migrants some amount of due process and returning people who were deported wrongfully. Out of the Trump actions that have come before them — which is a skewed universe, as we know — everything short of crossing those Rubicons, they’ve been fine with (or at least fine enough to allow them to continue temporarily).

Then you have Justices Brett Kavanaugh and Neil Gorsuch, who have also almost always sided with the president who appointed them, but have expressed more unease with the Alien Enemies Act removals, which they appear to have ruled against (to some degree) all three times they came before the court, instead of just once like Thomas and Alito.

On the other side, Justices Ketanji Brown Jackson and Sonia Sotomayor are the photo-negative of Thomas and Alito. Jackson is the lone justice who has never sided with the president, no matter the case that has come before the court. Where Alito and Thomas seem to have a very hard-to-reach red line, if Jackson has a green line when it comes to Trump, she hasn’t shown it yet. Sotomayor has broken with her only rarely, with a Trump score of 2/20, to Jackson’s 0/20.

Justice Elena Kagan is next on the liberal side. Consistent with her broader judicial approach, she has flexed some pragmatism at times, seemingly sanctioning Trump’s attempts to revoke migrant statuses that previous presidents gave as well as his efforts to remove probationary employees.

Finally, you have the swing votes: Chief Justice John Roberts and Justice Amy Coney Barrett, who have both been in the majority in almost every Trump case. Accordingly, Trump’s uses of vertical power do not appear to have crossed their red lines — but their rulings in horizontal cases have been more complicated. They have expressed skepticism about the cases involving due process; they both voted against Trump in the initial case involving spending. In the second spending case, Barrett sided with Trump and Roberts again voted against him.

As we know, perhaps to avoid frustrating the chief justice, the Trump administration hasn’t tried to bring such a case since then. Throughout the year, Alito and Thomas (generally joined by Gorsuch and Kavanaugh) have mostly given Trump carte blanche no matter what he is trying to do. Meanwhile, Jackson has been ringing the alarm on every Trump action, even in instances where Sotomayor has felt such a response wasn’t merited (though Sotomayor and Kagan have usually aligned with her).

That leaves Roberts and Barrett, who have been much more nuanced in their decisions, in large part depending on the directionality of Trump’s actions. In all likelihood, the court’s red line will be drawn wherever Roberts and Barrett end up drawing theirs.

1. I’ve included in this category the court’s rulings in Trump v. J.G.G., where the justices agreed with the plaintiffs that the Trump administration owed migrants deported under the Alien Enemies Act some amount of due process but also agreed with the administration that the migrants needed to sue in a different venue, and Noem v. Abrego Garcia, where the justices agreed with the plaintiffs that Kilmar Abrego Garcia should be returned but also agreed with the administration that a lower court order to that effect had to be amended.

2. If four justices dissent from a ruling, we know that the other five must have been in the majority even if they don’t say it because, well, if any one of them had been in the minority, then the minority would have been a majority.