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Abbie VanSickle


NextImg:Supreme Court Returns to Face Trump Tests of Presidential Power

When the nine justices of the Supreme Court return to their raised mahogany bench each year on the first Monday of October, it typically marks the end of a three-month stretch of rest and reflection.

But this summer’s traditional recess was anything but a cooling-off period.

Instead, the justices churned through emergency requests from the Trump administration that sharply divided the court along ideological lines, in a reflection of how much President Trump’s agenda has consumed their calendar.

The president’s policies will have an even more central role in the term that begins on Monday, after the justices agreed to take three cases with broad consequences for his agenda. In November, they will hear arguments about the legality of Mr. Trump’s sweeping tariffs, a centerpiece of his trade strategy. In December, they will consider Mr. Trump’s efforts to wrest control of independent agencies, and in January, his attempt to fire a member of the Federal Reserve Board.

By the time the term ends in June, there could be others. Already, the administration has asked the court to take up a pair of cases testing the legality of the president’s executive order ending birthright citizenship, an issue that raises fundamental questions about what it means to be an American.

The result will be a term of generational consequence for the court and the presidency, and a defining one for the legacy of Chief Justice John G. Roberts Jr., who will mark his 20th year on the bench.

“It’s hard to imagine bigger tests of presidential power than these potentially once-in-a-century separation-of-powers battles,” said Deepak Gupta, a lawyer at the firm Gupta Wessler who frequently argues cases before the justices. “And we’re seeing more than one of them at once.”

Since Mr. Trump took office in January, the court’s conservative majority has repeatedly sided with the administration. But those decisions came in a series of emergency, unsigned orders. Often published without reasoning on what critics call the “shadow docket,” the orders have technically been temporary, addressing whether a challenged policy could be implemented while its legality was tested in court.

But until now, the justices have not squarely addressed the legality of Mr. Trump’s boundary-pushing policies to transform the government.

That will change this term, as the justices confront Mr. Trump’s policies head-on, offering final judgments on whether they are legal, in cases that include oral arguments and decisions with lengthy opinions.

“We’re going to see, among others things, whether the Supreme Court is actually going to say no to Donald Trump on anything,” said Pamela S. Karlan, a co-director of Stanford Law School’s Supreme Court Litigation Clinic and former Justice Department official in the Obama and Biden administrations.

“They’ve tried to dodge and tried to dodge and tried to dodge saying no to him by coming up with procedural ways to say yes to him,” Ms. Karlan said. “But I don’t see how they get out of this term doing it that way.”

Apart from the administration’s cases testing the limits of executive authority, the court will hear a series of other consequential matters, including more politically charged legal battles over gender identity.

Last term, the court divided along ideological lines when it allowed Tennessee to prohibit some medical treatments for transgender youths. On Tuesday, the justices will consider a challenge from a Christian therapist who objected to a Colorado law prohibiting licensed mental health therapists from counseling minors to change their sexual orientation or gender identity.

The court will also hear legal challenges to state laws barring transgender athletes from girls’ and women’s sports teams.

Major cases that could reshape the election landscape are also on the docket, including one that could result in the justices striking down or severely restraining a key part of the 1965 Voting Rights Act.

That case involves a challenge to Louisiana’s voting map, which was adopted following the 2020 census and includes two majority-Black congressional districts.

The justices heard a challenge to the map in the spring. Rather than rule on whether state lawmakers unlawfully emphasized race in drawing the map, as some non-Black residents had argued, the justices announced that they would hear the case again with a more expansive constitutional question. The rare move suggested that some members of the court might be ready to use the case to gut the Voting Rights Act, a pillar of the Civil Rights era that conservatives have been whittling down in recent years.

The justices this week will also hear a challenge to rules on mail-in ballots in Illinois, a case that could open the way for efforts to restrict voting by mail. And later in the term, the court will consider what could become a landmark case on campaign finance regulations — a challenge to federal guardrails that limit political parties from coordinating with candidates to spend money on campaign advertising.

But the heart of the court’s work this term, which by tradition will stretch into late June or early July, is likely to involve Mr. Trump.

The justices have so far issued more than 20 orders in response to emergency applications involving the Trump administration, ruling overwhelmingly in Mr. Trump’s favor in decisions that were technically placeholders.

Their rulings have addressed preliminary questions, such as who has the right to sue and in which court. But the immediate impact of those interim orders has been significant. In recent months, the justices have allowed Mr. Trump to withhold billions of dollars in foreign aid funding; to begin dismantling the Education Department; to deport migrants to war-torn countries where they have no connections; and to kick transgender troops out of the military. While the majority’s rulings are often brief, the three liberal justices have issued lengthy and impassioned dissents.

Irv Gornstein, who leads the Supreme Court Institute at Georgetown Law School, said it was hard to ignore the court’s overwhelming habit of dividing along ideological lines when issuing emergency orders in the Trump administration’s favor.

Mr. Gornstein added that if those voting patterns hold when the court reaches final decisions about the validity of the administration’s policies, and with other controversial cases on its docket, “we are in for one of the most polarizing terms yet.”

The opening months of the term feature back-to-back tests of the president’s agenda. The justices have fast-tracked review of Mr. Trump’s sweeping tariffs, after a lower court said the president exceeded his authority by invoking a 1970s-era emergency power to tax imports from major trading partners. The International Emergency Economic Powers Act has typically been used to impose sanctions and embargoes against other nations. It does not mention the word tariff.

Some leading conservative and libertarian scholars have said in court filings that the president’s use of the statute to impose tariffs was unlawful, and that the power to tax must remain with Congress. If the justices agree with the lower courts that Mr. Trump improperly invoked the act, the president will be forced to remove that set of tariffs. But the administration is already issuing tariffs under other legal provisions.

In December, the court will examine the president’s power to fire a leader of the Federal Trade Commission, revisiting a 90-year precedent that has allowed Congress to pass laws preventing presidents from removing independent regulators solely over policy disagreements.

Even before Mr. Trump returned to office, the Supreme Court’s conservative majority had taken steps to make it easier for presidents to remove independent agency leaders, signaling it would be receptive to claims of executive power.

In January, the court will consider whether Mr. Trump can remove Lisa Cook, a Federal Reserve Board governor. The justices have signaled in a separate case that the Fed is uniquely independent, and their decision will have far-reaching implications for the central bank and the U.S. economy.

Steve Vladeck, a professor at Georgetown Law School, cautioned against reading too much into the Supreme Court’s preliminary orders. Only in this term, he said, will the justices show whether they plan to curb Mr. Trump’s expansion of executive power.

“That’s why this term is so important. Plenty of folks think that question has already been answered, but the conclusive evidence is still to come,” Mr. Vladeck said.

Jonathan Adler, a law professor at William & Mary who specializes in administrative and constitutional law, said that one reason Mr. Trump had been so successful at the court so far was that his lawyers had been able to cherry-pick which cases to bring to the justices, largely avoiding some of the thornier disputes.

The result, he said, was an “unrepresentative sample.”

The rulings so far “don’t really tell us how the court views the substance of what the administration has been planning,” he said.

Chief Justice Roberts this term will become the fourth-longest-serving chief in the court’s history.

A student of history, he is an admirer of the longest-serving chief justice in American history, John Marshall, who avoided issuing rulings that would provoke direct confrontations with President Thomas Jefferson — a model he will now have to decide whether to emulate.

He will preside over a court with members who appear to be growing more restless. Throughout the summer, in appearances at judicial conferences and book talks, the justices aired disagreements over how the court was handling the president’s many requests, including how much the court should explain itself to the public and lower-court judges.

Tensions among the justices have also spilled out in their emergency rulings, in which the court’s liberals have sometimes included sharp words as their colleagues have cleared the way for the president’s agenda.

Justice Ketanji Brown Jackson in particular has pointedly criticized her conservative colleagues, characterizing one ruling in July as “not only truly unfortunate but also hubristic and senseless.” Justice Sonia Sotomayor suggested in a separate dissent in July that the majority was giving special treatment to Mr. Trump, writing that the administration “has the Supreme Court on speed dial.”

Kannon Shanmugam, who regularly argues cases before the court, said the bench that Chief Justice Roberts joined in 2005 was made up of justices who appeared more interested in the court’s institutional reputation.

“I think the chief justice is very much in that vein, but he doesn’t have a lot of partners right now in that regard, said Mr. Shanmugam, who was a law clerk to Justice Antonin Scalia. “The challenge the chief justice has going forward is in managing this somewhat more individualistic and somewhat more fractious group of colleagues.”