'Alarming trend': How the Supreme Court is encouraging 'Trump’s excesses'

In U.S. law, the Latin term "stare decisis" means "let the decision rest" — in other words, respect for precedent. And the U.S. Supreme Court's right-wing 6-3 supermajority hasn't been shy about overturning precedents — for example, overturning Roe v. Wade after 49 years in Dobbs v. Jackson Women's Health Organization in 2022, or forbidding the use of race-based affirmative action in college admissions.

In an opinion column published by the Daily Beast on May 29, former federal prosecutor Shan Wu argues that the High Court's supermajority is helping President Donald Trump out by respecting stare decisis when it is convenient but tossing it aside when it isn't.

Noting a recent Supreme Court decision allowing Trump to fire members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) — and overturn 90 years of precedent in the process — Wu laments, " This decision continues the alarming trend from the conservative majority: respecting precedent only when it suits their ideology. Enhancing the power of the president under a unitary executive theory has been a long-game effort by legal conservatives, but the combination of that transactional judicial analysis with overuse of the emergency docket may not only put stare decisis on a path towards its deathbed, but also, the effectiveness the High Court."

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According to Wu, the Supreme Court's "unprecedented increase in the use of the emergency docket" is undermining "the lower courts and the processes in place to check excesses by the executive branch."

"This willingness to take on all cases immediately may reflect a conceit that the justices, at least the conservative ones, increasingly don’t hide: that the High Court’s ability to act fast negates the need for lower courts to issue nation-wide injunctions," Wu argues. "This approach, if fully implemented, would make the Supreme Court not the court of last resort, but the only court."

Wu continues, "In theory, the Court's taking on these cases could be seen as perhaps a willingness to take on the task of reining in Trump's excesses. But thus far, they seem avoidant of direct confrontation."

The High Court, according to Wu, is hurting its own credibility by "emboldening the Trump Administration's overreach."

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"Perhaps blinded by their own egos and sense of self-importance, the Roberts-led conservative majority seems to relish the conceit that only they have the legal chops to manage legal cases in the Trump era," Wu writes. "But such hubris actually undercuts the judiciary's effectiveness and, up against a figure like Trump who will seek to convert every inch given him into a mile, it may be undercut to the point of irrelevance."

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Shan Wu's full Daily Beast column is available at this link (subscription required).