'Serious structural problems' behind Supreme Court enabling Trump: attorney

Veteran civil rights litigator Sherrilyn Ifill on Wednesday exposed the "serious structural problems" at play in the US legal system as the Supreme Court continues to enable Donald Trump's power grabs, as it also attempts to grab an all-important power for itself from district courts.

Ifill spoke at length with lawyer Dahlia Lithwick on her Slate podcast, Amicus. The conversation, inspired by a recent Substack post from Ifill about fighting back against attacks on democracy and civil rights, including an extensive digression on the Supreme Court and its extraordinary deference to Trump and the Republican Party.

At one point, Ifill explained that, in its recent rulings, the Supreme Court has increasingly acted as if it has the authority to decide what the facts are in a given case, not just to interpret established facts and the law. This, she said, is supposed to be an authority reserved for district courts. Overall, she argued that it is becoming difficult or impossible to determine what the Supreme Court's actual rules are, besides deference to the president.

"We have some serious structural problems," Ifill said. "As a litigator, I don’t know how anyone can purport to pretend that they know what the rules are at the Supreme Court anymore. We have a Supreme Court that not only has the power to say what the law is, pursuant to Chief Justice John Marshall and Marbury v. Madison, but they’ve now decided that they have the power to say what the facts are. That has never been part of our system of adjudication and litigation. Assigning factual findings to the Supreme Court? No, that is for the trial courts, for district courts.

"But we are now seeing a majority on the Supreme Court that regularly swats away the findings of the district court," she continued. "That is the power of the district court. They are closest to the conflict. They can evaluate the credibility of the witnesses. They’re seeing the exhibits, the documents, all of it. It’s playing out in real time. It’s not theoretical for them. And now we have a Supreme Court that months later will swat away a two-week trial and the findings of fact over 160 pages by a district court. That’s real. That is real and structural. And it should not be dependent on the personnel of the court."

Throughout Trump's second term, many of his moves and pursuits have been constrained by rulings from lower district courts. When and if these decisions are successfully appealed all the way to the Supreme Court, its 6-to-3 conservative majority more often than not rules in a manner beneficial to Trump and his aims, with few notable exceptions.