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Speaking at a Federalist Society event the day the Supreme Court wrapped up its latest term, attorney Kannon Shanmugam described an “emerging theme” in the case results. “On issues of . . . broader significance,” the head of Davis Polk’s Supreme Court and appellate practice group said, “the, quote-unquote, ‘conservative’ side is typically winning. On issues that are more specific to this administration, the outcomes are sometimes different.”
I agree with Shanmugam’s view about the court’s conservatism with respect to the issues of broad significance – what I would call issues of longstanding interest to conservatives. In the term just completed, LGBTQ advocates lost cases involving conversion therapy and transgender athletes. The court validated Second Amendment claims in two separate cases (although even the liberal justices went along with the result in one of them). The conservative super-majority continued its long-running project of dismantling the Voting Rights Act in a ruling that was handed down just in time for Republicans to further gerrymander their congressional districts before the upcoming midterm elections. By the usual 6-3 vote, the conservatives invalidated a provision of federal campaign finance law. And perhaps most significantly, the court struck down statutory restrictions on the president’s power to remove the leaders of nearly all independent federal agencies.
I also agree with Shanmugam about the most administration-specific case of the past term. In rejecting President Donald Trump’s effort to impose sweeping and unprecedented tariffs under the International Emergency Economic Powers Act, the court relied on workaday tools of statutory construction and (for a plurality) the ideologically conservative major questions doctrine to achieve an ideologically conservative outcome. Trump’s love of tariffs runs contrary to the traditional conservative preference for free trade and opposition to taxes of any sort. The case thus fits Shanmugam’s paradigm quite well.
However, it would be a mistake to read the term just concluded as proving that the Supreme Court’s conservative super-majority are traditional conservatives rather than MAGA conservatives (and, to be clear, I do not attribute that mistaken view to Shanmugam or anyone else; I consider it because it might seem a logical inference from the pattern of decisions). In the major cases in which the Trump administration lost, the outcome would have been different were it not for the votes of the liberal justices. Moreover, in validating longstanding conservative positions, the court handed the Trump administration in particular enormous power.
No traditional conservative majority
Supreme Court pundits will disagree about what counts as a major ideologically freighted case, but by my count, the Trump administration lost five such cases in the past term: on tariffs, mail-in ballots, mobile phone location searches, birthright citizenship, and Federal Reserve independence. In each case the outcome would have flipped if not for the votes of liberal justices.
The court’s rejection of the administration’s narrow reading of the citizenship clause of the Fourteenth Amendment illustrates the fact that the Supreme Court is not dominated by a traditional conservative, anti-MAGA majority. Consider the fact that four of the six Republican appointees thought the Trump executive order limiting birthright citizenship constitutionally valid in at least some of its applications. That hardly paints a picture of traditional conservatives standing against Trumpism.
On the contrary, the divisions on display in Trump v. Barbara might signal that limiting who counts as an American and hostility to undocumented immigration are becoming standard conservative positions. That interpretation is bolstered by the administration’s two big wins for its restrictive immigration policies. The court allowed the president broad power to end Temporary Protected Status and read a federal statute to permit the administration to block asylum by physically blocking asylum seekers. Both decisions were by an ideologically divided 6-3 margin.
The Federal Reserve case is also illustrative. Traditional business-friendly conservatives surely value an independent central bank as essential to address the risk of disastrous monetary policy. Politicians too often will favor low interest rates to stimulate the economy in the short term to create what economists call a sugar high. But the long-term impact of a too-accommodative monetary policy is sustained high inflation or even catastrophic hyper-inflation. In pressuring the Fed to lower interest rates in the face of persistent above-target inflation, Trump demonstrates the precise reason for Fed independence.
And yet Trump v. Cook was decided by a mere 5-4 margin, with only two of the court’s six conservatives voting to reject Trump’s pretextual effort to fire a member of the Federal Reserve Board of Governors.
Missing the trees for the forest
The cases that are best explained as fulfilling longstanding conservative goals squarely undermine any notion that the court is resisting Trump’s agenda. In those cases, the court is most charitably described as hyperopic. Whereas people experiencing myopia see only what is immediately before them rather than the big picture, hyperopia is the opposite: one sees objects in the distance but not those up close.
The Supreme Court’s most hyperopic decision in recent years came in Trump v. United States in 2024. The conservative justices gave sitting and former presidents sweeping immunity against criminal prosecution for acts within the “outer perimeter” of their official responsibilities for fear that the possibility of criminal liability might prevent them from taking necessary bold actions. The court worried about a hypothetical future risk even as it ignored the not-at-all-hypothetical reality of a once-and-future president who, thanks to the court’s conferral of immunity, was able to completely avoid accountability for fomenting an attempted coup.
The most hyperopic decision of the 2025-26 term was Trump v. Slaughter, in which the court overruled the 1935 precedent of Humphrey’s Executor v. United States and invalidated good-cause removal protection for members of the Federal Trade Commission. True, conservative scholars and justices had been championing the unitary executive theory on which the Slaughter decision relied since well before Donald Trump became a politician. And earlier Roberts court rulings had narrowed Humphrey’s. Thus, one could have imagined the court handing down Slaughter during any administration (although it is easier to imagine the case coming down during a Republican administration than during a Democratic one). Nonetheless, by seizing the opportunity to achieve the long-term goal of eliminating independent agencies at this particular moment, the court ignored the very real dangers the second Trump administration poses.
Given how Trump’s appointees have weakened the ability of executive agencies to perform their statutory functions while abusing the powers they have, this would appear to be the worst possible time to give the president control over federal agencies that Congress designed to act independently of direct presidential supervision. And yet that is exactly what the court did in Slaughter.
Indeed, the dangers the current administration poses to democracy are so apparent that hyperopia may be too charitable a description of the court’s approach. Willful blindness might be a better descriptor. If so, then Mullin v. Doe, the TPS case, would be most emblematic of the past term.
After concluding that the TPS statute precludes judicial review of non-constitutional claims, the court went on to reject the respondents’ argument that the decision to end TPS for Haitians was racially motivated. In dissent, Justice Elena Kagan pointed to Trump’s description of Haiti as a “shithole” country as well as his calumnies that Haitians in Ohio were eating people’s pets, “probably have AIDS,” and are “poisoning the blood” of our country. The majority failed to mention any of those or any other statements, writing that “[n]one of the cited statements by either the President or [former Homeland Security Secretary Kristi Noem] was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.” Justice Samuel Alito, who delivered the lead opinion, did not say what policy view Trump was expressing by accusing Haitians of eating the cats and dogs of Springfield, Ohio.
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In iconic statuary, Lady Justice is blindfolded to symbolize the ideal of impartiality: all persons are equal before the law, which should be administered without favor to rich or poor, friend or foe. The Roberts court has evidently drawn a different lesson from the image of blind justice. Its decisions are blind to the consequences of handing ever more power to an authoritarian president with precious little regard for democracy, the Constitution, or even basic decency.
