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During his first year back in office, President Donald Trump amassed an unprecedented amount of power in pursuit of his far-reaching agenda. His quests to crush the Democratic Party’s electoral power, seize control over the economy, and deport millions of immigrants were all actively abetted by the Supreme Court’s Republican-appointed justices. Time and again—often over the shadow docket, with no explanation—the 6–3 supermajority cleared the path for Trump’s aggressive executive overreach. Those who believed that SCOTUS might serve as a modest check on the administration’s abuses were proved wrong almost weekly, as the court’s far-right bloc delivered win after win to the president it had helped return to the White House. The justices’ rare rebuke to Trump on Tuesday over his deployment of the National Guard in Chicago illustrated just how far outside the law this president must go before a majority is willing to tell him no.
On this week’s year-end episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern ponder the two big questions posed by this alliance: Why did the Supreme Court conservative supermajority align with Trump, and what consequences might it face for its choices? A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: A year ago, we were operating under the theory that three of the six conservative justices were not all in for MAGA and genuinely cared about democracy. That was a mistake. Instead, what we have seen is the so-called center go all in for Trump, doubling and tripling down on the idea that this administration is like every other administration and any judge who tries to thwart it is a woke liberal—including fistfuls of Trump judges who aren’t auditioning for the Supreme Court. And just as the Supreme Court went after DOJ officials during Jack Smith’s prosecution of Donald Trump, it’s now going after judges who stand in the president’s way, suggesting that they are anti-Trump zealots suffering from “Trump derangement syndrome,” while we the justices are normal and must put a stop to it.
Why? It’s hard to believe that they go to cocktail parties with only the furthest of the far-right donors. It’s hard to believe that they don’t occasionally read the Washington Post or the New York Times. So what is going on? And this is the real thing I think we haven’t grappled with, but I’m not sure people who are watching the court have yet satisfactorily explained it, at least to my ears. What possible benefit is there to being the stewards of the MAGA destruction of America?
Mark Joseph Stern: My top-line thesis—and I want you to dispute it, because I don’t know if it’s entirely right—is that these justices have fully cast their lot with Trump and Trumpism. And a big part of Trumpism is antidemocratic, ensuring that political minorities can entrench their own power through undemocratic institutions like the Senate, the Electoral College, and the judiciary, as well as through voter suppression and assaults on democracy. Trumpism seeks to perpetuate a system that privileges the elites, the wealthy, white people, Christians, non-LGBTQ+ people. And I fear that the Supreme Court is now intertwined with that perception of who deserves power and who can legitimately exercise power—which is Trump and his GOP and their supporters. So it fills the need to protect Trump’s entire project from the direct forces of actual democracy.
That’s why one of the big pieces of this puzzle is voting rights. The Supreme Court is currently on the brink of delivering another blow to the Voting Rights Act in Callais v. Louisiana. It has been green-lighting voter suppression for so long. Just this month it reinstated Texas’ racial gerrymander that benefits Republicans. Any conversation of this kind needs to start there, because what we are seeing is the court trying to accelerate and facilitate the Trump agenda—and, on the other side of it, trying to ensure that the people can no longer shake loose this regime or really do anything to stop it and reverse what it has done, because there’s only one true way. It’s originalism and Trumpism, which are increasingly the same thing. And anyone who contests that is wielding an illegitimate claim to power. That justifies taking away voting rights and equal representation and democracy and whatever is necessary to ensure that what the regime’s doing now can just keep going forever.
When I started doing these New Year’s shows, it really struck me that we get absolutely caught up in individual big-ticket cases that weigh toward Trump and the culture wars, without looking at all the cases in the aggregate. When you’re covering the court, it is very easy to think, in the moment: The only case that matters is tariffs. Or transgender athletes. Or birthright citizenship. And, to be sure, every one of those cases is a blockbuster. But if you look at the big themes this year, you’re exactly right: It’s the voting cases. There are a lot of voting cases on the docket. We’ve talked about Callais and Texas’ gerrymander. There’s also campaign finance, plus a major case about mail ballots that the court will hear this term.
I think we really need to see the trend line, which is: The Supreme Court now has six votes to do anything it wants. And it is constantly taking cases about how people vote, where people vote, how their votes are counted, how campaigns are financed. While the big-ticket cases with huge social justice and racial justice implications do matter, it’s the democracy cases that have the biggest impact. We’re barreling into the midterms, and the 2028 election after that. And the way for the Supreme Court to achieve all the big-ticket items it wants is to make sure that Donald Trump and the Republican Party have a permanent majority.
By the way, these democracy cases don’t always get treated as seriously in the public conversation. They can be arcane; explaining campaign finance is a two-bourbon job right now. These are abstractions, and they can get devalued in the discourse. But we have to reckon with the fact that if you are a six-justice supermajority and you want to make sure you can do all the stuff you want to do for the next 10 or 20 years, you need to ensure that nothing will stop you, not even an election.
I do want to add that the birthright citizenship case, while absolutely a social justice issue, is also a democracy case. It’s about who counts as an American. And if the Trump administration gets its way, it would radically reduce the number of people who have a constitutional claim to birthright citizenship and are therefore able to participate in basic aspects of civic life. And that’s a theme that sounds in a lot of these other cases: Who gets to be a full and equal American citizen, and who gets something more like skim-milk citizenship? You see it in democracy cases and civil rights cases alike: Straight white men get the highest form of American citizenship. They can’t stop winning, while everybody else is losing.
That really does lead me to this stakes question, because we ask all the time on this show: What are the stakes for women? For LGBTQ+ communities? For immigrants? But I want to ask the question: What are the stakes for the Supreme Court? Because it seems to me we don’t think nearly hard enough about what is on the line for those six MAGA justices if they don’t shrink democracy enough to change electoral outcomes.
I think they have reached a point of no return, and they are scared of what happens if the political winds switch direction. At least some of them must understand that they have failed to act as independent jurists. In the mind of a majority of Americans, they are a political body, and as I said, they have cast their lot with Trumpism. If they had spent the past year truly standing up to Trump from time to time, I don’t think they’d have as much to fear from Republicans losing political power. I doubt there would be as much Democratic appetite for Supreme Court reform, including term limits and court expansion.
The Republican-appointed justices could have played this smarter if their goal was to stave off Democratic backlash. Giving Trump just 25 percent more losses would have given a lot of people the impression, rightly or wrongly, that the court was more or less doing its job. Americans want to see one branch stand in the way of another when it looks like there is an abuse of power. At this point, though, the justices have gone too far down this road to turn around. And they should be worried, because there is a very real chance that the entire Trumpist project will fall apart. And they are now so intertwined with Trumpism that they might collapse with it. That’s why it is so important for them to weaponize these democracy cases. There may come a time when the only way they can maintain their grasp on power is to oppress the majority.
