A summer of quiet clearance

Over and over this summer, the court put a thumb on the scale for a near-limitless view of presidential power. Each ruling chipped at the idea that it cares about law or checks and balances.

The question nobody can answer

Dahlia Lithwick put it to Berkeley Law dean Erwin Chemerinsky on Amicus: what is this court doing, and why now? Her theory is that the supermajority behaves nothing like the Roberts court of five years ago.

Not naivete, assistance

Lithwick rejects the charitable read. The court isn't innocently trusting the Justice Department, it's a 6-3 or 5-4 bloc actively helping the administration get where it wants to go.

“This looks and feels like a 6, 4, sometimes 5, 4, majority overtly assisting the Trump administration.”

Chemerinsky's blunt answer

A very conservative president is governing in a very conservative direction with six very conservative justices. Often they simply agree with him. Often they want to back him because he's their president.

“In a lot of the instances, they want to support what he's doing because he is their president.”

Alabama gets the benefit of doubt

After Louisiana v. Callais gutted Voting Rights Act enforcement, the one path left was proving intentional race discrimination in redistricting. A three-judge court found exactly that in Alabama.

Deference in the wrong direction

The Supreme Court tossed the finding, saying the lower court hadn't shown enough presumption of regularity toward the Alabama Legislature. On race discrimination. In Alabama.

“It's astounding to think we should give Alabama deference when it comes to claims of race discrimination, given its history.”

The three-part tool kit

The mechanism isn't grand constitutional rulings. It's manipulating standing, balancing harms, and declaring what counts as an emergency, all framed as eye-of-the-beholder calls.

This is not feelingsball

Standing and ripeness are taught doctrines with decades of pedigree, not hunches. A justice doesn't get to lick a finger, hold it up, and announce there's no standing here.

“This is not feelingsball; a justice doesn't get to stick her finger in the wind and say, "There's no standing here."”

The 1972 rule on aesthetic injury

Sierra Club v. Morton established that seeing a park or river destroyed is an injury real enough to sue over. The court has repeated it for half a century. It's how environmental law gets enforced at all.

The ballroom plaintiff

Professor Alison Hoagland walks through the park by the White House and said watching the demolition was an aesthetic injury. Lower courts agreed she could sue.

Reduced to mere distaste

The Supreme Court waved it away as offense and distaste. If that holds, any environmental plaintiff can be dismissed the same way, nullifying more than fifty years of settled precedent.

“It nullifies over a half-century of well-established precedents.”

The clever double win

Ruling on procedure hands Trump the outcome and permanently narrows the courthouse door. Every future environmental case loses standing. Every future birthright case loses the nationwide injunction.

“This is a win for the court no matter how you slice it.”

Boring on purpose

A ruling that demolishing the East Wing is legal would draw headlines and look absurd. Saying "no standing" achieves the same result and reads as housekeeping.

Why injunctions matter

Without nationwide injunctions, stopping an illegal policy everywhere means filing in all 96 federal district courts. The consequence is enormous and almost impossible to make people feel.

Trump 1.0 heard no

This same court blocked the census citizenship question and stopped Trump from killing DACA. The standing rule then was roughly: don't embarrass yourself at DOJ, and don't embarrass this court.

“Don't lie to me, or at least lie to me better.”

The missing swing vote

The Rehnquist court was conservative too, but O'Connor and Kennedy sat in the middle. That court upheld affirmative action in Grutter and gave Guantanamo detainees habeas rights against Bush.

The sixth justice

Chemerinsky's thesis, and his coming book: everything changes at six. With Thomas, Alito, Gorsuch, Kavanaugh and Barrett, there's no median to win over. Obergefell wouldn't come out the same today.

“Those cases wouldn't come out this way today.”