The Supreme Court’s hearing on former President Donald Trump’s immunity claim on Thursday will underscore a significant shift in power dynamics. In an era of closely divided politics, the six justices appointed by the GOP have emerged as the most enduring source of influence shaping the nation’s trajectory.
“The Supreme Court is arguably the central character in our national narrative at present, as it sets the parameters within which other branches, states, and the American people operate, potentially more assertively than ever before,” says historian Jeff Shesol, author of a comprehensive account of President Franklin D. Roosevelt’s clashes with the court during the Great Depression.
Despite Chief Justice John Roberts’ comparison of the court to an impartial “umpire” during his confirmation hearing, the conservative majority has consistently guided policy on a broad spectrum of social, racial, and economic issues towards the preferences of the Republican Party, which nominated them and whose senators largely voted to confirm them.
Over the past two decades, the conservative movement has achieved more significant victories at the Supreme Court than through legislation or executive branch decisions. The rulings by the GOP-appointed justices have brought about extensive policy changes, more so than any administration, even those with unified control of government, has been able to generate, according to Paul Pierson, a political scientist at the University of California at Berkeley.
For Democrats, navigating around the Supreme Court majority has become a critical challenge, with the final weeks of each court session turning into a period of relentless stress as they await decisions on the year’s key cases. This year will be no different, as the court releases opinions on divisive cases, including whether a former president is immune from criminal prosecution for actions taken while in office.
However, the court’s handling of the case, which significantly reduces the likelihood of Trump facing a trial in his federal election subversion case before November, has once again highlighted its unparalleled influence to many observers.
Trump’s relationship with the court’s conservative majority has been complex, despite his crucial role in its formation. In perhaps the most significant policy case of his presidency, the court in 2018 upheld his ban on visitors from Muslim-majority nations. However, the same court also struck down his efforts to add a citizenship question to the census and his attempt to end former President Barack Obama’s program providing legal protection to young people brought to the US illegally by their parents.
The court has also ruled against Trump on several cases related to investigations, allowing Manhattan prosecutors to access his financial records and the bipartisan House committee that investigated the January 6, 2021, riot to obtain White House records that it sought. The court also dismissed the case from Republican state attorneys general and members of Congress, backed by Trump, that attempted to invalidate the 2020 election results in four states that Joe Biden won.
More recently, the court handed Trump a significant victory when it ruled that individual states could not bar him from the 2024 ballot using the 14th Amendment’s prohibition against office-holding by officials who engaged in insurrection. But this case, which was decided unanimously, has not sparked anything like the controversy about the court’s handling of Trump’s claim of immunity.
At multiple points, the Supreme Court has made decisions that have slowed its consideration of the case – with this week’s hearing falling on the term’s final day for oral arguments. Scholars who defend the court say that, by its normal standards, it is actually moving at an accelerated pace.
“I think if anything they’ve gone a little faster than normal,” said Michael McConnell, director of the Constitutional Law Center at Stanford University Law School. “What some people want them to do is put them on a rocket, and it’s not obvious why they should do that either.”
But critics argue that through its scheduling decisions, the Supreme Court has already provided Trump exactly what he most desires: extensive trial delays that diminish the chances he will face a jury before November in the 2020 election interference case from special counsel Jack Smith.
Those skeptical of the Supreme Court’s actions in the immunity case often liken it to the 5-4 Bush v. Gore decision, in which the five GOP-appointed justices outvoted the four nominated by Democrats to terminate the voting recount in Florida and effectively declare George W. Bush the winner in the 2000 presidential election.
“Until now this was a conservative court, but it was not a MAGA court: They had shown no appetite for bailing Trump out of his troubles, or for covering up for his abuse of power,” said Michael Waldman, president and CEO of the Brennan Center for Justice at New York University School of Law. “But what they have done with the immunity case is the most egregious intervention by the Supreme Court in partisan presidential politics since Bush v. Gore at least – but really ever.”
McConnell, though, argues that the substance of the court’s likely decision will render this debate about its timing moot. He predicts the Supreme Court will rule that Trump can’t be criminally prosecuted for actions that fall within his official responsibilities as president, but can for private actions beyond that orbit and will send the case back to the trial court to decide which counts in the indictment fall into which category.
“It is going to take some time to sort through the indictment and figure out which parts are ok and which parts aren’t,” said McConnell, a former appellate court judge appointed by George W. Bush. “I think anybody who thinks the case is going to go to trial and be decided before Election Day is having a pipe dream.”
Whatever, and whenever, the court decides, the immunity case has placed it in a familiar position – with a decisive role in framing the terms of the competition between the parties. One reason for the Supreme Court’s growing impact is that the GOP-appointed majority represents a rock of stable influence in a political era largely defined by instability.
Neither party has defended unified control of the White House, the House and Senate for more than four consecutive years since 1968; In the 21st century, Republicans have held unified control for just six years and Democrats for four. That’s meant each party has been able to convert its priorities into legislation only through short bursts of activity punctuated by long periods of partisan stalemate. In sharp contrast, the court’s conservative majority has exerted its influence year after year, without interruption.
Entrenched conservative dominance of the Supreme Court has become “this kind of force field that we just take for granted,” said Waldman. Another key reason for the court’s growing impact is that its conservative majority has become more cohesive.
Justices appointed by Republican presidents have comprised a majority of the bench since 1970. But for most of the past half century those appointments did not produce a reliable ideological majority; several proved to be swing vote moderates (including Sandra Day O’Connor and Anthony Kennedy, both selected by Ronald Reagan) or even reliable liberals (like David Souter, chosen by George H.W. Bush.)
In modern times, though, an exhaustive machinery has developed in each party to reduce the chances that Supreme Court nominees will surprise the party that selects them. The process has become particularly institutionalized on the Republican side, with groups led by the conservative Federalist Society exerting enormous leverage over the selection process. “There is just much more intense vetting of Supreme Court justices,” said Pierson.
In the period of both the earlier 5-4 GOP-appointed majority, and the 6-3 “supermajority” cemented by Barrett’s confirmation, the court has sometimes rendered verdicts on policy questions that collide with the dominant opinion among Republicans.
In the 5-4 era, the court narrowly upheld Obama’s Affordable Care Act, established a nationwide right to same-sex marriage, and extended civil rights protections in the workplace to gay and transgender individuals. In the 6-3 era, the court surprisingly upheld a ruling that Alabama violated Black voting rights with its congressional maps and rejected the doctrine pushed by some conservatives to provide state legislators unfettered authority to award their state’s Electoral College votes, regardless of the outcome in the popular vote.
But mostly, the court in this century has delivered a succession of seismic policy victories for conservatives. During the 5-4 era, it issued landmark decisions severely weakening campaign finance laws (Citizens United), effectively ending federal preclearance of state voting procedures under the 1965 Voting Rights Act (Shelby County), and preventing Obama from requiring states to expand Medicaid under the ACA.
Since the appointment of Brett Kavanaugh and Barrett, the court has virtually eliminated affirmative action in higher education, severely restricted the authority of states to regulate gun ownership, overturned Biden’s plan to offer student loan relief, and most dramatically, rescinded the constitutional right to abortion that had stood for 50 years.
In both periods, the court has reliably ruled to lower the barriers between church and state, and to weaken the federal government’s regulatory authority, particularly on environmental issues such as climate change.
Cecilia Munoz, who served as the chief White House domestic policy adviser for Obama, said the addition of a sixth reliably conservative vote in Barrett has materially changed the calculation for Democratic presidents. While Obama was president, she said, the administration assumed that it would face lawsuits against virtually all of its major executive branch decisions. But the White House still believed, with a 5-4 balance, “it was not a foregone conclusion” that the court would strike down their plans, she said.
With the 6-3 balance, though, “That hope has gotten thinner in recent years,” she added. “You can tell by the results of the court decisions over the past several years that it is fundamentally different. Even someone like the Chief Justice [Roberts], who famously controlled that first ACA decision, doesn’t have control of the court any longer.”
The cohesion and ambition of the conservative majority has left Democratic presidents in what many analysts view as a stalemated situation. The filibuster has made it tougher for presidents of either party to pass their agenda through Congress; but when Obama or Biden have tried to respond by asserting executive authority to act unilaterally (as Obama did on immigration or Biden did on student loans), the court’s GOP-appointed majority has routinely invalidated their actions.
“The combination of the filibuster and this Republican court does come pretty close to an effective blockade” on Democratic policy-making, said Pierson.
McConnell, of the Constitutional Law Center, countered that while the conservative majority on some issues has issued rulings more sweeping than he considered necessary, overall, he believes the court is not inserting itself into national debates more intrusively than in earlier generations. “It’s just that they tend to be going more to the right side of the spectrum than the left side, so suddenly people who had been cheering on the Supreme Court for flexing its muscles are now disgruntled,” he said.
With Samuel Alito and Clarence Thomas, the oldest members, both in their mid-seventies, this court majority could continue well into the 2030s to write the rules for a society undergoing rapid demographic and social change.
Shesol, who also served as a White House speechwriter for Clinton, believes the long-term influence of this majority could exceed even that of the conservative Supreme Court blocs that invalidated generations of progressive federal, state and municipal legislation like the minimum wage and maximum hour laws from the turn of the 20th century until well into FDR’s New Deal.
“I do think in terms of its duration and impact, it will be far greater than what the conservatives in the 1920s and 1930s were able to accomplish,” Shesol said. Then, he noted, FDR had massive Democratic congressional majorities that helped him to reverse the court’s anti-New Deal decisions until his lengthy hold on the White House provided him enough vacancies to reverse the court’s ideological balance.
Now polarization and pervasive use of the filibuster have made it much more difficult for Democrats to legislatively reverse decisions by this conservative majority. While Republicans have little chance to pass laws through Congress undoing the signature Democratic accomplishments of the New Deal and the Great Society, Shesol said, “if you build a majority in the Supreme Court, you can tear the whole edifice down.”