The story between John Roberts and Donald Trump hides something sinister.

This is part of Opinionpalooza, Slate’s coverage of the Supreme Court’s major decisions. The best way to support our work and benefit from exclusive legal analysis is to join Slate Plus. (If you’re already a member, consider a donation or product!)

The Supreme Court has entered the final part of its term, with about two dozen opinions to issue before the justices take their summer vacation at the end of June. At Slate, we call this mad dash to the finish line “Opinionpalooza,” and we approach it every year with equal parts fascination, skepticism, and dread. These remaining cases have massive implications for democracy, civil liberties, and the fundamental question of who can become an American; they include disputes over birthright, citizenship, voting rights, immigration, and executive power. Many will test Donald Trump’s ability to reduce the separation of powers to an autocratic presidency with no real limits to his rule. The justices will likely impose some restrictions on Trump’s outsized monarchical ambitions in the coming weeks, particularly where they threaten judicial supremacy. In total, however, they will bring him even more victories in his broader assault on constitutional constraints. And where the ambitions of the court’s MAGA wing align with Trump’s goals, it’s Trumpism that will run the table.

On this week’s episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern kicked off Opinionpalooza by discussing the court’s dangerous game of empowering the president until he jeopardizes his own prerogatives. An excerpt of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: The Supreme Court continues to align with Donald Trump on this maximalist vision of the imperial presidency, both in front of and behind the curtain. For every substantive case that gives Trump a big victory in public, there are shadow cases that do the same thing in secret. It feels like any appearance of conflict between the president and the court is staged, with many invisible threads that we don’t always pay attention to.

Mark Joseph Stern: That’s one of the reasons why, if the justices overturn his birthright attack, no one should say, “Look, they’re putting Trump in his place! He’s really not a king!” Because there are so many other cases where the court absolutely makes him a king. This allows him to consolidate as much power in the executive branch and particularly in the person of the president, and to ignore all those checks and balances that Congress has adopted to prevent a monarchical or authoritarian president from abusing his power. And the Supreme Court is almost entirely aligned with Trump on this issue, particularly on the shadow docket, where this consolidation continues.

John Roberts does this magic trick: do something small, get people used to it, then do it big. We’ve seen this trend in cases over the years where the Supreme Court makes a small adjustment to prepare the country for when you do big things later. Then it’s less surprising and almost seems like it follows logically from when the court did it in a lesser way. The shadow folder has become the way you do things now, hasn’t it? You lay the groundwork on the shadow file and say, “Well, it’s the law now.” » This process took four or five years: do it small, wait a few mandates, then do it big. Now, with the shadow file, you can do it in the same time frame and make it seem inevitable or inexorable.

This leads to this interaction between the ghost role and the background role. Roberts’ great gift is his mastery of optics and public relations. He must know that there was a huge outcry against the incredibly rapid pace at which questions were being resolved on the shadow docket: if Trump wanted something, the court considered it an emergency; he assumed the president was still wronged, but ignored the damage done to other parties. During this second half of the mandate, there was a slowdown in resolving major existential questions on the shadow file. Why then?

I have a very cynical view of this: It’s less that the court has learned its lesson or become more considerate of lower court judges, and more that the court has already accomplished much of what it wanted by giving Trump what he was looking for. Trump came in and had plenty of ideas about the extent of his executive power — seizing federal funds, firing executive officials, rewriting immigration laws — and by and large the Supreme Court let him do it. The vast conservative majority issued all these phantom orders paving the way for this to happen. Now it has happened; Trump’s takeover of the federal government is largely complete. So I just don’t think the court needs to issue as many phantom orders as it did during this shock and awe campaign; he has already achieved his goals.

Alexis Romero and Mark Joseph Stern Three justices just challenged SCOTUS to say what it really thinks about black voting rights. Read more

The other thing is that for a while there was this struggle between the lower courts and the Supreme Court. SCOTUS would issue a phantom ruling that appeared to overturn decades of precedent without explanation. Lower courts would assume they still had to follow that precedent until it was overturned, rather than guessing what a cryptic shadow docket order meant. Then the Supreme Court spanked them and said: How dare you continue to apply the real law? You should read our minds and guess what we want. And what they wanted, more or less, was for Trump to win.

There is a simplistic narrative that it is the Supreme Court versus Donald J. Trump. And Trump likes to pander to this story by throwing tantrums when he doesn’t get what he wants, like in the tariff affair. And I want to think about how much of this story is true and how much of it simply serves the interests of the court and the president. It seems that when the agenda of the vast conservative majority aligns with what Trump wants, the court moves full steam ahead. We saw it in Callais and in the wake of what happened since Callais. Then, in the rare cases where the court returns to Trump’s prerogatives, it is to assert its own supremacy.

So what the Court continues to do is not just reaffirm Trump’s maximalist views of executive power, but reaffirm its own maximalist power to ultimately be the decision-maker. Does this give the lie to the whole story that everyone wants to tell about John Roberts versus Donald Trump? And by so often giving Trump what he wants — sometimes rushing to do so on a shadow docket — is the court actually emboldening him in a way that jeopardizes his own ability to ever say no to an important question in the future, because he is wasting the authority he actually has to say no?

Where the court sets the limit, it is almost always to defend its prerogatives and its power and remain the decision-maker. And I think there’s a real danger in only ruling against him in cases that actually threaten judicial supremacy. Conservative judges risk giving Trump such an assumption of victory that if he loses, he might not accept it. He could say: What power do you have to enforce this decision against me? We got a taste of this dynamic when the Supreme Court allowed him to fire all these different independent agency members, but warned him not to go after the Federal Reserve. Of course, Trump then tried to fire a member of the Fed! He could not stay within the red line that the court had drawn for him. This should worry Republican-appointed judges more than it obviously does.

Trump’s team has an incredibly terrible new idea. The story of John Roberts versus Donald Trump hides something more sinister

That’s the classic predator response, isn’t it? Yes means yes, while no means try harder or try in a different way. And the court continues to behave as if Trump is a rational actor who means no as well as no.

Well, we’ve seen the Supreme Court reward the Trump administration for repeatedly defying district court orders. He took a real liking to defying court decisions. There’s no clear reason why this should stop at the Supreme Court – why, ultimately, the administration won’t just say: Hey, it worked all those other times, it should work this time. Conservative judges seem to have this smug and arrogant presumption that even if they let Trump defy the lower courts, he will still respect their decisions. I think this is very questionable. I would be much more afraid of Trump deciding: they made me a king, so I’m going to act like one.

We will then really have a constitutional crisis, except that the court will have squandered the capital it had to say no and for this to be taken seriously.

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