Is the Supreme Court a Check on Trump?

From the series Chronicles of the new American nationalism

The Supreme Court has been asked to rule on the emergency powers used by President Donald Trump to advance two key policies of his mandate: the decision to deploy the National Guard on American soil in support of his immigration policy, and the imposition of tariffs on almost every trading partner.

In December, the Court issued a ruling which was unfavourable to the administration regarding the deployment of the National Guard in Illinois. At the time of writing, a ruling is expected that could declare the Liberation Day tariffs illegal. In addition, the Court is examining the dismissal of Lisa Cook, a member of the Federal Reserve Board.

Scepticism among judges

The White House imposed the reciprocal tariffs in April by invoking the International Emergency Economic Powers Act (IEEPA, 1977), according to which the president may suspend property and transactions related to a foreign power after declaring that it constitutes an unusual and extraordinary threat to the national security, foreign policy, or economy of the United States.

In November, the Supreme Court heard the legal representative of the federal government and, according to the unanimous account of the American press, the judges accepted the arguments of Solicitor General John Sauer with scepticism. The most interesting observations came from the six judges appointed by Republican presidents, three of whom were appointed by Trump.

Chief Justice John Roberts delved into the major questions doctrine, according to which the executive, when faced with important issues, does not act without a clear mandate from Congress. This administration is the first to have used the powers conferred by the IEEPA as a justification for imposing tariffs on any product from any country, in any amount, for any length of time. This seems unsuitable to Roberts for dealing with the declared emergency.

Samuel Alito, an authority on the subject, highlighted some practical aspects of the major questions doctrine in an interview with the Italian newspaper Corriere della Sera, which surprisingly received little comment. Alito notes that when a president says, I can't get laws passed in Congress, let me take a look at the existing rules to see if I can find something that allows me to do what I want, the major questions doctrine asks: Is this how Congress wanted that law to be interpreted?. If, for a long time, everyone believed that its meaning was obscure and not used to do anything important, when a president suddenly says, Here you go, I have enormous power under this little clause, the major questions doctrine states that this is probably not what Congress intended.

Brett Kavanaugh emphasised that Congress's purpose in passing the IEEPA was to provide the president with tools to respond to an emergency in an appropriate manner. Neil Gorsuch pointed out that, following the administration's logic, a future president could declare a climate emergency to obtain broad sanctioning powers over American industry.

Constant conflict?

In the same interview with Corriere, Alito places the current situation in a decade-long political cycle and a secular trend. During the 20th century, [Congress] delegated authority to the executive branch. And now, due to the polarisation of the country, it is almost impossible for Congress to pass laws, which are therefore largely implemented through executive agencies. The growing trend, from Barack Obama to Joe Biden, has been for presidents to resort to their own power or what they believe to be their own power and executive orders have increased.

In Trump's second term, many orders have been challenged legally and, if one of the 680 district judges says it is unconstitutional or illegal, the case comes to us [the Supreme Court] as an emergency matter. Since January, there have been 70 emergency cases, including those concerning the deployment of the National Guard and the tariffs.

Alito considers that institutions all work, to a certain extent, and that serious tensions could be the product of a particular era that will end, but at the moment there are serious frictions: It is very, very difficult to pass laws in Congress; presidents extend their powers to the limit, if not beyond the limit; judges sometimes exceed their powers; and the things the president does are challenged in court. So, we have a constant conflict, potentially, between the president and the courts.

A real brake?

If, in the past, presidents were careful with their words, today, in Congress and within the executive, they have gone too far, to the point that the judiciary is sometimes regarded as an illegitimate institution. Alito can only conclude: We can issue a ruling, explain it, and hope, as should happen in a society that believes in the rule of law, that the president will obey, as in the case of the National Guard.

Since this summer, Trump has sent the National Guard to Los Angeles, Portland, Washington DC, Memphis, Chicago, and New Orleans in support of Immigration and Customs Enforcement (ICE), the federal immigration enforcement agency, increasingly denounced as a paramilitary force serving the president's agenda.

The protests, and the tragic cold-blooded killing by ICE of a woman in Minneapolis, have been contested with competing rhetoric by Trump and Democratic governors, while opposition by States to the deployment of the National Guard has involved the courts up to the highest level.

In the ruling Trump vs Illinois, which was unfavourable to the presidency, the Supreme Court was divided 6-3, with Alito, Clarence Thomas, and Gorsuch dissenting, while Roberts, Kavanaugh, and Amy Coney Barrett voted with the three judges appointed by Democratic presidents.

Although the Court's unsigned order applied only to Chicago, Trump withdrew the National Guard from California, Illinois, and Oregon, which had opposed the measure. Meanwhile, Trump continues his law-and-order policy, implementing ICE actions and threatening to resort to the Insurrection Act to deploy the military within the country. And, without waiting for the verdict on the IEEPA, he has been exploring other legal means to freely impose tariffs.

CONSERVATIVE JUDGES OF THE SUPREME COURT

The US Supreme Court consists of nine members, appointed for life by the president upon ratification by the Senate. Here, we provide biographical notes on the six conservative judges appointed by the two presidents Bush senior and junior and by Donald Trump. Five of them are notable for their Catholic background and their origins in the black minority and in Irish and Italian-American immigration, a sign of generational social mobility that even the GOP, the Republican Party, has been able to tap into.

John G. Roberts [1955, Buffalo, New York]. John G. Roberts was born into a Catholic family; his father, an engineer at Bethlehem Steel, was of Irish-Welsh origin, while his mother was of Slovak-Hungarian descent. He attended Catholic schools in Indiana and, after graduating from Harvard Law School, served as a law clerk from 1979 to 1980 for Henry Friendly at the Court of Appeals for the Second Circuit in New York, and from 1980 to 1981 for William Rehnquist at the Supreme Court. He later served as an assistant to William French Smith, Ronald Reagan's attorney general, and then as legal counsel to the White House [1982-86]. He worked for Hogan & Hartson, one of the world's leading law firms, specialising in business and regulatory law. Appointed principal deputy solicitor general by George H.W. Bush [1989-93], he was named judge of the Court of Appeals for the DC Circuit in 2003 by George W. Bush. In 2005, following Rehnquist's retirement, Roberts was appointed Chief Justice of the Supreme Court and confirmed by the Senate with 78 votes in favour and 22 against.

Clarence Thomas [1948, Pin Point, Georgia]. Clarence Thomas was raised among Black Baptists who spoke Geechee, the Creole language of the Deep South. He was sent to Catholic schools by his grandfather, a small business owner who had converted to Catholicism. In My Grandfather's Son [2007], he recounts leaving a Benedictine seminary in Missouri to enrol at the Jesuit College of the Holy Cross in Massachusetts. Disappointed by the racism he encountered even in the North, he joined the Black Student Union. After Yale Law School, Thomas became a leading figure in Black conservatism. From 1974 to 1977, he assisted Missouri Attorney General John Danforth, an Episcopalian pastor and future senator. After working as a lawyer for Monsanto [1977-79], he joined the Reagan administration at the Department of Education and later chaired the Equal Employment Opportunity Commission [1982-90]. Appointed by George H.W. Bush to the Court of Appeals for the DC Circuit, he was elevated to the Supreme Court in 1991 and confirmed by the Senate by a vote of 52 to 48.

Samuel A. Alito [1950, Trenton, New Jersey]. Samuel A. Alito is the son of Italian-American teachers. His paternal grandfather, a labourer, emigrated from Calabria, while his maternal grandfather, from Basilicata, worked as a steelworker. Alito graduated from Princeton's Woodrow Wilson School of Public and International Affairs, and from Yale Law School, and went on to serve as a law clerk to Judge Leonard I. Garth at the Court of Appeals for the Third Circuit in Philadelphia. He worked as an assistant to the New Jersey attorney general [1977-81] and to Solicitor General Rex E. Lee [1981-85]. During the Reagan administration, he served as deputy to Assistant Attorney General Charles J. Cooper, when the Department of Justice was headed by Edwin Meese. After serving as US attorney in New Jersey [1987-90], he was appointed by George H.W. Bush to the Court of Appeals for the Third Circuit. In 2005, George W. Bush nominated him to the Supreme Court, and in January 2006 he was confirmed by the Senate by a vote of 58 to 42.

Neil M. Gorsuch [1967, Denver, Colorado]. Neil M. Gorsuch was born into a family of lawyers. His mother served as administrator of the Environmental Protection Agency during the Reagan administration. After attending Catholic schools in Denver and the Jesuit Georgetown Preparatory School, he graduated from Columbia University, studied at Oxford, and completed his legal education at Harvard Law School. He clerked for David B. Sentelle at the Court of Appeals for the DC Circuit [1991-92] and at the Supreme Court for Justices Byron White and Anthony Kennedy. From 1995 to 2005, he worked as a lawyer and later partner at Kellogg Hansen, a prestigious business law firm. During the presidency of George W. Bush, he served as deputy associate attorney general under Robert McCallum at the Department of Justice, then headed by Alberto Gonzales. Appointed to the Court of Appeals for the Tenth Circuit in 2006, he published The Future of Assisted Suicide and Euthanasia the same year. In 2017, he was nominated by Trump to the Supreme Court and confirmed by the Senate by a vote of 55 to 45. He is also the author of A Republic, If You Can Keep It [2019] and Overruled [2024], in which he considers the damage caused by excessive regulation to religious freedom and freedom of enterprise.

Brett M. Kavanaugh [1965, Washington, DC]. Brett M. Kavanaugh was born into a Catholic family of Irish origin. His father was a business lawyer and his mother a teacher. Raised in Maryland, he attended Georgetown Preparatory School and later Yale University, where he joined the Federalist Society. After Yale Law School, he clerked for Walter Stapleton at the Court of Appeals for the Third Circuit [1990-91], and for Alex Kozinski at the Court of Appeals for the Ninth Circuit in San Francisco. He later clerked for Solicitor General Ken Starr and, at the Supreme Court, for Justice Anthony Kennedy [1993-94], alongside Neil Gorsuch. Kavanaugh subsequently worked again for Starr and became a partner at Kirkland & Ellis, one of the largest business law firms. He joined the White House as legal counsel and held various positions during the George W. Bush administration, which appointed him to the Court of Appeals for the DC Circuit in 2006. In 2018, Trump nominated him to the Supreme Court, where he was confirmed by the Senate by a vote of 50 to 48.

Amy Coney Barrett [1972, New Orleans, Louisiana]. Amy Coney Barrett was born into a Catholic family of French-Irish origin, the eldest of seven children. Her father, a Shell Oil lawyer, later became a Catholic deacon. After attending Catholic schools, she graduated from Rhodes College in Memphis, Tennessee, and from Notre Dame Law School in Indiana. She clerked for Laurence Silberman at the Court of Appeals for the DC Circuit, and for Antonin Scalia at the Supreme Court. After practising at the small and prestigious business law firm Miller Cassidy, she joined the faculty at the University of Notre Dame. Appointed by Trump as a judge of the Court of Appeals for the Seventh Circuit in 2017, she was elevated to the Supreme Court in 2020, where she was confirmed after two contentious Senate votes. She is the author of Listening to the Law [2025].

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