LAST WEEK, THE SUPREME COURT’S cadre of six reliably pro-Trump justices indulged his latest claim to presidential prerogative. The Court allowed him to fire the Democratic appointees to the Consumer Product Safety Commission, even though, when Congress created the agency, it specified that its members had to include individuals from both parties and that they would hold terms of seven years.
In regularly voting in favor of President Trump—often in extraordinary interventions that short-circuit traditional judicial processes—those six justices are racking up a rap sheet of constitutional abuses of staggering import. Most appalling was the textually unfounded 2024 decision creating immunity for a president to commit federal crimes. But so much more followed.
In the term that closed out last month, the pro-Trump majority—over the passionate but impotent objections of three justices—summarily overturned the ninety-year-old precedent that had upheld the authority of Congress to create bipartisan and independent federal regulatory agencies to protect the health and safety of the American public.
The Court has repeatedly brushed aside lower courts’ efforts to protect the livelihoods of thousands of career public servants whom Trump’s erstwhile chum Elon Musk arranged to have thrown out on the street with little warning. Not content with sustaining the most bombastic assertions of presidential prerogative, the majority even emasculated the power of federal judges to enjoin such concededly unconstitutional action.
In perhaps the cruelest pattern of indulging presidential brutality, the majority has consistently licensed the Trump administration to treat thousands of human beings like cattle, to be evicted from the country and penned up and shipped off, simply because they are “undocumented.” In the one related decision in which the justices gave the appearance of breaking with the Trump administration to some degree—involving the administration’s lawless treatment of Kilmar Abrego Garcia—the decision was toothless and the administration ignored it.
HISTORY HAS A WAY OF RECKONING with mendacity, corruption, and recklessness. Time may delay the verdict, but eventually the verdict will be returned.
Donald Trump and his administration will have to face the verdict of history. And so will his six enablers on the Supreme Court who have been complicit in eroding the constitutional ideal of constrained executive power and creating a virtually omnipotent presidency.
I’m reminded of the final scene in the Academy Award–winning 1961 film Judgment at Nuremberg. The movie is a slightly fictionalized version of the actual trials of German judges who had acquiesced in the Nazi regime’s misuse of the legal establishment to punish and brutalize their perceived enemies. I must hasten to make clear at the outset that I am not equating the decisions of the pro-Trump justices of the Supreme Court with the actions of Nazi jurists who deliberately condemned Jews and other minorities to torture and death. But the film makes a vital point about the corrosive, long-term effect of any judicial willingness to suspend the rule of law.
One of the key figures is the enigmatic, formerly respected jurist Ernst Janning (a composite character played by Burt Lancaster). Shortly after being found guilty for his complicity in the use of the law as an instrument of repression, Janning asks the American judge who presided over the international tribunal (Spencer Tracy) to visit him in his cell. Janning offers a desperate cri de coeur:
Judge Haywood . . . the reason I asked you to come: Those people, those millions of people. . . . I never knew it would come to that. You must believe it. You must believe it!
But the American judge had seen and heard the evidence of the effects of Janning’s actions along with those of his colleagues:
Herr Janning, it came to that the first time you sentenced a man to death you knew to be innocent.
The six pro-Trump Supreme Court justices won’t someday be forced to account for the damage their decisions are inflicting on both the principles of American constitutionalism and on the lives of tens of thousands of victims of the Trump administration. They won’t have to answer for the damage that will be inflicted by future presidential administrations emboldened by their decisions. It would not be realistic or appropriate to anticipate the justices hauled before some tribunal to answer for their rulings.
Rather, the verdict will come, as it more often does, in the harsh and uncompromising light of history. Anyone familiar with the Journal of Supreme Court History, published by the Supreme Court Historical Society, or with countless legal and historical textbooks and scholarly articles, knows that, eventually, the justices who join in hateful and destructive decisions suffer the damnatio memoriae long after they have left this earthly scene.
A handful of examples suffices. Most infamous, of course, is Chief Justice Roger Taney’s decision in the Dred Scott case, holding that black persons have no rights that whites need to respect.
Decades later, the Court’s “Four Horsemen” of the New Deal era, in trying to frustrate social and economic policies intended to protect the poor and powerless, came to symbolize the forces of entrenched judicial reaction.
And the various decisions by a divided Supreme Court upholding the exclusion or detention of Japanese-American citizens have forever tarnished the reputations of the justices who authorized that presidential repression. As Chief Justice John Roberts himself has grudgingly acknowledged, those decisions have been “overruled in the court of history.”
The six members of the current Court who regularly vote to sustain President Trump’s most aggressive assertions of unbridled presidential power will find themselves listed on the same rolls of infamy that include the names of their predecessors from those earlier misguided cases.
That prospect of eventual historical repudiation is small comfort for those of us living through the reality of the Trump years. The damage is being done now, to real people. The justices’ actions threaten to unleash even more dangerous assertions of unchecked presidential arrogance, which it may take decades to rein in—if it ever can be reined in.
The six justices who make up the pro-Trump voting bloc enjoy life tenure and absolute immunity from liability for the harm that they cause. Equipped with those protections, they just seem not to care how history will judge them. What a shame.