The Supreme Court’s (Self-defeating) Supremacy

This essay, prepared for the 2025 volume of The Supreme Court Review, seeks to provide a holistic account of the Supreme Court’s behavior on emergency applications relating to the Trump administration during its October 2024 Term. As it demonstrates, the justices in those cases not only flouted the traditional standards for emergency relief; they exhibited repeated and sustained disrespect for both lower courts and Congress, enabling the executive branch to act in defiance of countless statutory restrictions; of settled constitutional understandings; and even of coercive district court mandates, all with dramatic (and deleterious) real-world consequences. As the Alien Enemies Act cases illustrate, the takeaway is not that the Court always ruled for President Trump; it's that it pushed back only when its mandates were on the line. The upshot is an attempt by the Supreme Court to preserve its supremacy, as such. But such an approach, the essay concludes, is likely to be self-defeating. In the short term, it will encourage the executive branch to take ever-more-aggressive actions against both the people and the lower courts. And in the long term, it will not just further weaken Congress and the lower courts; it will further erode public confidence in the judiciary as an institution. Together, the increased power and momentum of the executive and the decreased credibility of (and respect for) the courts will make it that much harder for the Supreme Court to wield the supremacy it's protecting, even when it wants to.