The Supreme Court Thinks It Protected the Economy From Trump. It’s Delusional.

The Supreme Court’s recent decisions reveal an emerging strategy for dealing with Donald Trump, one that puts the entire judiciary’s independence and legitimacy at great risk. Over and over again, the conservative supermajority has blessed Trump’s violations of the law, allowing him to consolidate an unprecedented amount of power at the expense of the other branches. Yet from time to time, the justices have also tried to draw a line in the sand to prevent Trump from transgressing constitutional principles that they personally hold in esteem. This tactic was on full display in May, when the court allowed Trump to fire two leaders of independent agencies—an undisputed violation of federal law—while trying to protect the Federal Reserve from his interference. It was fully visible a week earlier, too, when the court ruled that the Trump administration could not expel Venezuelan migrants without due process—while refusing to decide whether he could invoke an 18^th-century wartime law to deport them in the first place.

Mark Joseph Stern discussed this approach to Trump, and its dire shortcomings, with Jed Shugerman during a live recording of Amicus at the WBUR Festival in Boston. Shugerman is a legal historian and professor at Boston University School of Law who has meticulously debunked the bogus history that lies behind Trump’s claim to unlimited power. An excerpt of their conversation, below, has been edited and condensed for clarity.

Mark Joseph Stern: I think we could go on for ages about all the fake history that lies behind the “unitary executive theory.” But I want to raise a practical point: This just seems like the worst possible moment in history for the Supreme Court to be embracing an unlimited vision of executive power. For anyone who cares about American democracy, Trump is the last guy who should get the keys to dictatorial control over an unrestrained executive branch. Do you think the Supreme Court is doing this because they love Trump and want to crown him king? Or do you think the court is doing this because, well, they have a majority right now, so they’re going to get it done and let the chips fall where they may? In other words, why is this happening under one of the least responsible, least civic-minded presidents we’ve had in American history? 

Jed Shugerman: I don’t think they’re doing it for Trump. I think they are bargaining in the shadow of Trump. They worry about Trump, but they are more ideologically opposed to the New Deal administrative state. So in this opinion where they bent over backward to invent bad history to protect the Federal Reserve, they’re showing you the money. And by that I mean they’re showing you their right-wing ideological commitment to big-business conservatism. Now, I think Trump worries some of the justices. And this is a bizarre time for them to be handing him so much power when his tariffs are destroying the market. But they’re revealing how much their ideological blinders blind them to the danger that Trump poses to democracy, and to the danger he poses to liberal capitalism.

If I were a conservative, I’d be looking at this moment and saying: Now is the time to look back at the founders and understand that they designed the Treasury and other financial institutions to be independent from the president. Madison proposed an independent comptroller! The founders had this concern about executive power in their own time, and a good originalist would recognize that Trump is the danger that the founders foresaw. But the conservative justices are so pro–Wall Street that they can’t even see that Trump is a danger to Wall Street.

Well, except that’s why they carved out the Federal Reserve from Trump’s reign, right? They’re savvy enough to realize that if Trump takes control of the Fed, all our 401(k)s will be in the toilet by 5 p.m. Trump will fire Fed Chair Jerome Powell, start slashing interest rates, and we’ll have disastrous inflation. So they just carved out the Fed so Trump couldn’t get his greasy little hands around it. But at the same time, they gave him control over these agencies that protect unions and federal workers, that guard against monopolies and corporate power, because the conservative justices don’t want those protections to exist. It seems to me they want protections for Wall Street, but not for everyone else. Do you think that’s fair?

I think that’s fair. And it connects to this broader issue: The legal establishment can’t understand the threat of Trump. It thinks it can make a deal. That’s the mindset of elite lawyers right now. They think they can make bargains with Trump. And they have ignored all of Trump’s history, where every deal is a deal he can break. So law firms pre-capitulate to Trump thinking he’ll stick with these deals. Universities pre-capitulate and acquiesce to Trump thinking he