242. The "Independent Court" Narrative

Efforts to defend the Supreme Court *because* of its independence from President Trump miss both the real-world impacts of its recent behavior and the reason *why* judicial independence matters.

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I’ve heard a lot over the past few weeks, especially from conservative defenders of the Supreme Court, about just how “independent” the Court is—how the fact that it ruled against President Trump in (exactly) four significant cases this term should somehow serve as a complete defense to all criticisms of the Court’s behavior, and should stand, instead, as conclusive proof of the Court’s legitimacy. In a New York Times roundtable in which I participated, University of Chicago law professor Will Baude suggested that “this is one of the most independent courts I can imagine at this stage of the second Trump administration.” Cato’s Doug Bandow devoted a column to “The Virtue of Judicial Independence.” A USA Today columnist predicted that “[s]uch independence will surely be forgotten the next time they rule in the president’s favor by those who wish to undermine the court’s legitimacy.” And even Justice Kagan gave a bit of a nod to these arguments in her remarks at the Ninth Circuit Judicial Conference, calling the charge that the Court has been too deferential to this President “a bad rap,” and agreeing that the Court has not been “a puppet” for this administration.

There are two different—but equally significant—problems with this framing, and today’s “Long Read” elaborates upon both of them. First, however much folks want to make out of the Court’s rulings in the tariffs, birthright citizenship, Lisa Cook, and Illinois National Guard cases, there’s still that pesky little denominator—the massive amount of allegedly unlawful behavior by this administration that the Court has green-lit, especially through unsigned and thinly explained orders on the emergency docket. Not only did the Court grant 22 consecutive applications by the federal government last year, but as I argue in my forthcoming Harvard Law Review Foreword, it has gone even further in those rulings and elsewhere to limit the ability of lower federal courts to push back against systemic lawlessness by this administration—and to thereby enable executive branch mischief, even if and when it isn’t affirmatively endorsing it. So even on its face, holding the Court out as a bulwark against Trump is factually contestable, at best.

But even to those who find the “independent Court” framing more descriptively persuasive notwithstanding the contrary evidence, there’s a much deeper second problem: Judicial independence is not, and is not supposed to be, an end unto itself; it is a means to an end. As Justice Anthony Kennedy memorably put it at a 2007 Senate Judiciary Committee hearing, “Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must.”

The central problem with this Court, as I’ve argued (ad nauseam) before, is that this Court does what it pleases, when it pleases—because it has become completely unaccountable. An independent Court, like a stopped clock, may still be “right” every once in a while. But a Court that continues to arrogate power from the other branches; that continues to aggrandize the role of lower federal courts (and then doesn’t defend them from external attacks); that continues to overrule prior precedents solely because of its disagreements with them; and that continues to assert that it isn’t (and ought not to be) accountable to anybody is a Court that will only continue to lose public support—and, thus, lose its ability to stand up to other government institutions when it actually needs to—no matter how “independent” it is.

To trumpet the Court’s “independence” as the relevant yardstick is to deeply misunderstand the entire purpose of the enterprise—and the gravity of the danger the Court’s recent behavior has created, and is creating, for itself. Independence may make it possible for the Court to rule against the other branches of government, but it isn’t why the other branches have to comply.

More on all of that below. But first, the news.

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On the Docket

The Court issued three orders last week—all of which were denials of stays of execution respecting Florida’s “double execution” on Tuesday of James Duckett and Dominick Occhicone. There were no public dissents from the three orders—the 102nd, 103rd, and 104th full-Court rulings on emergency applications during the October 2025 Term.

Turning to this week, nothing formal is expected from the Court (the next set of summer housekeeping orders isn’t expected until August 17). But it seems distinctly possible, if not likely, that we’ll get some movement on the two emergency applications (including one from the Trump administration) in the mail-in ballot cases—which I covered in detail in last Thursday’s bonus issue.

Finally, for readers who might be prospective applicants for a clerkship in Justice Jackson’s chambers, I’m posting (as I did last year) a letter from her chambers with respect to the process for applying for the October 2027 Term (i.e., 2027-28). I appreciate and commend Justice Jackson’s efforts to provide broader public access to this information—and, whether through this newsletter or more official media (like the Supreme Court website), I hope her colleagues will follow suit.

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The One First “Long Read”:
One-and-a-Half Cheers for the “Independent” Court

As I previewed above, my own view is that there are two distinct critiques of the “independent Court” narrative—one descriptive and one normative.

The Descriptive Critique: Is the Court Really “Independent” of Trump?

Those playing up Trump’s losses at the Court this term have a remarkable tendency of playing down his wins. Yes, the Court rejected President Trump’s IEEPA tariffs in February; yes, it struck down his birthright citizenship order in June; and yes, it refused to let him fire Fed Governor Lisa Cook without any process at all. (The fourth ruling in this camp is the denial of a stay in the Illinois National Guard case from December.) But it also gave him Trump v. Slaughter—overruling Humphrey’s Executor outright and subjecting the heads of more than 20 formerly independent, multimember agencies to the President’s whim—and Mullin v. Doe, which cleared the way to strip legal status from roughly 350,000 Haitian and Syrian TPS holders while holding that a district court couldn’t even review most of how the Secretary got there (a ruling that implicates as many as 1.5 million noncitizens who have never committed a crime and who face pretty terrible conditions if/when returned to their home countries). The President’s victories changed the law and the structure of the executive branch permanently, in Trump’s favor, and in ways that no future president is likely to give back. To be sure, Trump’s losses weren’t irrelevant. But other than the Fourteenth Amendment holding in the birthright citizenship case, they were at least legally modest.

Then there’s the emergency docket. This administration has filed 35 emergency applications in roughly 18 months—against 19 from the Biden administration across four years, and just eight from Bush and Obama combined across sixteen years. It has won almost all of them. Bloomberg Law found the justices granting relief in 24 of the first 27 administration-related orders (including, in my own data, 22 in a row). This past term alone, the Court wiped out more than 20 preliminary injunctions and TROs entered against the government. Justice Sotomayor has called the volume “unprecedented in the court’s history.” If you put that number—two dozen-plus, mostly unexplained, mostly unsigned—up against the four losses described above, the claim of “independence” becomes quite a bit murkier (all the more so given the doctrinal moves the justices have made to support those results—which, as I’ve explained, have been Trump-specific).

The interventions have also tended to facilitate much more widespread activity by the executive branch—usually without any suggestion that the activity is legal. With respect to restructuring the executive branch, the Court effectively blessed the government-wide reduction-in-force order in July 2025 (Justice Jackson’s “wrecking ball”); it cleared the dismantling of the Education Department, and it let Trump remove officials at the NLRB, MSPB, and CPSC well before Slaughter explained why. With respect to appropriations, the justices allowed the termination of more than $700 million in NIH grants and then unblocked the first “pocket rescission” in half a century, freeing the President to withhold roughly $4 billion Congress had appropriated—what Justice Kagan called “a presidential usurpation of Congress’s power of the purse.” Andwith respect to immigration, the Court let the administration end TPS for more than 300,000 Venezuelans and stayed an order barring roving patrols in Los Angeles from targeting people by apparent ethnicity, language, and occupation—with only a solo (and deeply problematic) concurrence from Justice Kavanaugh trying to explain why. In each case, the Court’s interventions are what made the policies operative—policies that produced, and continue to produce, massive real-world effects.

Beyond the specific behavior that it has enabled, the Court has also spent much of the last 18 months making it harder for lower courts to halt systemic executive branch lawlessness. Last June’s ruling in Trump v. CASA largely took universal injunctions off the table. Trump v. Boyle told district judges that they are bound not just by what the justices hold but by what they can be inferred to have meant in cryptic orders—a point Justice Kavanaugh restated in Cook, where he wrote that “as a matter of vertical stare decisis, the lower courts have no choice but to follow our lead.” Trump v. J.G.G. foreclosed APA review in a wide swath of immigration cases (especially those arising under the Alien Enemies Act of 1798)—channeling those cases into messy district-by-district habeas litigation. And the Court has also read new constraints into the Tucker Act that has forced countless spending-cutoff suits out of district courts and into the Court of Federal Claims—which generally lacks the power to issue coercive relief (like injunctions).

All of this is coming at the same time as the Court is granting emergency relief even in cases in which the Trump administration had defied the district court; as Justice Gorsuch has chastised lower courts for “defy[ing]” the justices; and as the Court has declined to provide any broader defense of lower-court judges despite withering and deeply personal attacks from the executive branch and its supporters. One might have expected the Supreme Court to be the lower courts’ shield against a program of systemic executive lawlessness, or, at the very least, against unprecedented executive branch attacks on (and defiance of) lower courts. My Foreword argues, to the contrary, that it has been a significant part of the problem.

Against that backdrop, the four big rulings against Trump look considerably smaller than they did on the days they came down. The Guard order was a denial of a stay “at this preliminary stage.” The tariffs ruling closed one statutory door and the administration promptly walked through others. Cook held only that Trump owed Lisa Cook process before firing her, and sent the case back so the government could try to fire her with process. And the birthright citizenship ruling invalidated an order that had never taken effect, because every judge to look at it had already said it was flagrantly unconstitutional. Those decisions aren’t insignificant, but they also aren’t the whole waterfront. A Court isn’t independent just because it rules against the President every once in a while; one also needs to consider what he is able to do anyway—and who let him do it.

The Normative Critique: Should “Independence” Be the Goal?

Regardless of how you slice the data, there’s a deeper problem with the way folks are arguing about this: they’ve turned judicial independence into the benchmark, when it never has been, and isn’t supposed to be, the reason for having an independent judiciary. Independence is instrumental. It matters because of what it produces—a judiciary free to rest its rulings on law rather than on the identity or the preferences of the party in front of it or the threats the judges face if they rule the “wrong” way. Alexander Hamilton’s point in Federalist No. 78 was not that independence is intrinsically valuable but that the judiciary, holding “neither force nor will, but merely judgment,” would need something other than force or will to make its judgments stick.

That authority was to come from diffuse public support—a general willingness, accumulated across decades and across ideological lines, to accept the Court’s rulings as binding even when one strongly disagrees with them. Political scientists have spent forty years documenting that such a base of existing support is what distinguishes such durable judicial authority from specific, transactional approval of particular outcomes. They’ve also argued, that entire time, that this kind of capital is far harder to rebuild than it is to spend. The popularity (and legitimacy) that creates that authority is not something the Court possesses inherently or by structural design; it is something it earns from the public, only over time. That’s why treating independence as a self-justifying good gets the causation backwards, and it lets the Court off the hook for spending down its limited capital—for whether its behavior is continuing to provide the public with reasons to obey it.

When President Eisenhower sent the 101st Airborne into Little Rock in September 1957, he was not acting out of deep agreement with Chief Justice Warren’s opinion for the Court in Brown—he had been conspicuously unenthusiastic about Brown and said so. He acted because defiance of a federal court order by a governor, televised nightly, had become intolerable to a country that took the Court’s word as law. As he put it in a televised address to the nation on September 24, 1957, “[t]he very basis of our individual rights and freedoms rests upon the certainty that the President and the Executive Branch of Government will support and insure the carrying out of the decisions of the Federal Courts, even, when necessary with all the means at the President’s command.” Indeed, Eisenhower continued, “[u]nless the President did so, anarchy would result.”

And when President Nixon released the tapes in response to United States v. Nixon, he did so on the advice that resistance was politically unsurvivable—a unanimous Court, including three of his own appointees, had told him to comply, and there was no constituency for defying it. Neither President obeyed because the Court was “independent.” Both obeyed because the Court was respected enough that disobedience would have cost them more than compliance did. The Court’s power didn’t flow from its independence; it flowed from popular support for its authority.

Last month, in contrast, Gallup found only 33% of the public approves of the Court—the lowest in the 26 years it has asked the question, down from a prior floor of 39% a year earlier—and Republican approval fell from 79% in September 2025 to 58%. The numbers may be sharper among Democrats, but the decline among Republicans should be just as disconcerting to anyone who cares about the Court’s forward-looking authority. Marquette’s pollsters attribute part of it to a “broad perception that the court has sided with the president on more issues than it’s opposed him.” That’s certainly part of it.

But whatever has caused the downturn in public support for the Court, more “independence” isn’t the solution. A Court that wants to regain public trust is a Court that tries to earn that trust back. It’s more than a little difficult to look at the October 2025 Term (or any other recent session of the Court), or the justices’ behavior off the bench, and see any visible evidence of any concerted effort in that direction. Thus, even if the Court rules against Trump more in the years to come (in both absolute and percentage terms), that won’t solve the problem, either. The answer, as ever, is a Court that is responsive, and acts as if it ought to be responsive, to the other institutions of government—with justices, to go back to Justice Kennedy, who do what they must, not what they please.

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SCOTUS Trivia: The Rump Docket

Today’s the First Monday in August. From 1790 until 1838, that would have made it the opening day of a Supreme Court Term—one at which, by statute starting in 1802, a grand total of one justice was expected to show up.

I’ve written about this before, but it remains my favorite bit of Supreme Court arcana, and it comes from a pair of terrific 2006 articles by Professor Ross Davies: “The Other Supreme Court” in the Journal of Supreme Court History, and “A Certain Mongrel Court” in the Minnesota Law Review. Davies’s name for the institution is the “rump Court,” and the short version is that the Supreme Court came in two flavors from 1802 to 1838: the familiar en banc February Term, and a summer sitting at which a single justice returned to Washington and constituted the Court all by himself.

The Rump Court was a byproduct of a sustained interbranch row. After the Election of 1800, the lame-duck Federalist Congress passed the Judiciary Act of 1801—the “Midnight Judges Act”—and the incoming Democratic-Republicans repealed it in March 1802. The companion Judiciary Act of April 29, 1802 consolidated the Court’s work into a single annual February Term—conveniently postponing Marbury for fourteen months—while providing that one justice could hold a session each August.

As Davies notes, nobody at the Court ever objected that this was in tension with Article III’s command that the judicial power be vested in “one supreme Court.” The justices were at that very moment writing furious letters to each other about the constitutionality of the repeal and the restoration of circuit-riding. On the rump Court, they were, as Davies put it, perfectly untroubled. Both the en banc Court and the one-justice August Court were simply treated as versions of the same institution.

Part of that may have been because, at most of the August sittings, nothing of consequence happened. A contemporary newspaper account quoted by Davies reported that “[f]or many years past, the business of this court has been entirely pro forma.” But not always. In August 1838, Chief Justice Taney—sitting alone—heard argument and delivered an opinion on an order to show cause in Ex parte Hennen, a case the full Court would go on to decide at the January 1839 Term. Davies makes the persuasive case that this only makes sense if Taney understood himself to be acting as the Court rather than as the Fourth Circuit’s Circuit Justice. He also reprints Taney’s unreported August 1838 opinion in full—which is reason enough to read the article.

Taney’s move drew attention to the whole strange arrangement, and Congress abolished the August Term in February 1839, with only vague gestures toward “efficiency” by way of explanation. Which brings me to Davies’s larger point: for 37 years, Congress subdivided the Supreme Court into two differently constituted bodies, and no one—not the justices, not the litigants, not the bar—thought “one supreme Court” forbade it. Whatever you make of the current proposals to restructure the Court, the early Congresses plainly believed they had more latitude here than we tend to assume. They may have been right.

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