What is the Supreme Court doing and why are they doing it? This summer it has been hard to say. Every time the highest court in the land puts a thumb on the scale for a capacious view of executive (read: specifically Donald J. Trump’s) limitless power, it contributes to the idea that the court cares not a lick about law, democracy, checks and balances, or even the future of the American experiment. On this week’s Amicus, Dahlia Lithwick spoke with Erwin Chemerinsky, dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley, School of Law. Lithwick asked Chemerinsky about her theory that the court’s current supermajority is behaving very differently than the Roberts court of even five years ago. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: I think we have to acknowledge that in order to get to where they want to go, the high court must willfully blinker itself to reality. The court, certainly the Roberts supermajority majority, seems absolutely willing to shrug off the reality that court orders are being ignored, the reality that this “emergency” doesn’t exist, the reality that the president does not have the power to do much of that which he seeks to do. But this is not, I believe, simply willful naivete, Erwin. This isn’t some kind of presumption of regularity, a belief that the Justice Department always tells the truth, and we assume that the administration is always working in the best interest of the country. This is something else. This looks and feels like a 6–4, sometimes 5–4, majority overtly assisting the Trump administration.

Erwin Chemerinsky: I think what you have is a very conservative president governing in a very conservative direction with six very conservative justices. In a lot of instances, they agree with what he’s doing. In a lot of the instances, they want to support what he’s doing because he is their president.

Let me give you an example that supports what you’re saying, going back to the voting area. After Louisiana v. Calais, the Supreme Court made it much harder to enforce the Voting Rights Act, but the one path the Supreme Court left open was that there could be a finding of intentional race discrimination in redistricting, and that would be illegal and unconstitutional. So, a three-judge court finds that Alabama engaged in intentional race discrimination in drawing districts. It goes to the Supreme Court, and the Supreme Court says there wasn’t a sufficient presumption of regularity––there wasn’t sufficient deference to the Alabama Legislature.

It’s astounding to think we should give Alabama deference when it comes to claims of race discrimination, given its history. That was just the Supreme Court being very conservative and doing just what you said, ignoring the findings of the lower court.

So the tool kit that the Supreme Court has been using to support what Trump is doing—the court is manipulating standing, balancing harms, and claims of emergencies. An emergency is in the eye of the beholder, they suggest; standing is in the eye of the beholder. But I want you to remind folks that there’s actually doctrine on all this. This is not feelingsball; a justice doesn’t get to stick her finger in the wind and say, “There’s no standing here.” These are doctrines that you teach, doctrines I learned in law school, and they’re not meant to be malleable. When the court torques standing, harms, or exigency to get an outcome that is different from what the law would dictate, they are messing with doctrines that have a long-standing pedigree, and confounds expectations on all sides that we know the rules of the road.

We want the rules about who can get into court to be as clear and predictable as possible. I’ll go back to 1972: In Sierra Club v. Morton, the Supreme Court said that plaintiffs who claim an aesthetic injury have a harm sufficient to get into court, a harm sufficient for standing. And in so many cases, the Supreme Court has repeated that. And it’s the way it should be. How else could we enforce environmental laws? When there’s been destruction of a park or a river, in violation of environmental law, the users of the park and the river have to be able to sue. That’s exactly what the plaintiffs in the case with regard to the White House ballroom said. The plaintiff in particular, professor Alison Hoagland, said, I regularly walk through this park. I look at the White House, and seeing what they’re doing is an aesthetic injury. So I should be able to come to court and argue that what’s being done is unconstitutional and it’s illegal. The lower courts accepted that, and the Supreme Court just blatantly disregarded it, saying, essentially, It’s nothing, she just has a distaste and is offended. That would then mean in any case involving an environmental injury, a court can say, “It’s just offense and distaste.” It nullifies over a half-century of well-established precedents.

What you’re saying is so important because I think that’s the added bonus for the Roberts Six here. We saw this last year in the first birthright citizenship case, where doing away with the injunctive power of lower court judges confers an enormous benefit that accrues to the high court.

And we see here that if you manipulate standing rules, if you manipulate what is an emergency, if you manipulate when a case is ripe to be brought, because it’s abstract and obscure, it’s not the same as saying, “Go ahead, Donald Trump, build your ballroom! You can do what you want, it doesn’t matter if Congress hasn’t appropriated the funds.” Or, “Go ahead, Donald Trump! Why don’t you take over mail in-elections nationally?”

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Instead, SCOTUS delivers a very clever double win. It’s not just giving a victory to the president that, as you said, they would be inclined to side with anyway, it’s also doing away with all of the rules of the road so that in every future environmental case there’s no standing. In every future birthright citizenship case, you can’t have a single judge issuing an injunction. This is a win for the court no matter how you slice it.

That’s exactly right. When Supreme Court decisions are on procedural grounds about standing or ripeness, about whether or not there can be nationwide injunctions, that doesn’t resonate with people. It’s too abstract. And so if the Supreme Court would have handed down a ruling last week saying that destroying the East Wing and building the ballroom is constitutional and legal, that would have of course gotten more headlines. It would have also been absurd given the constitutional principles and federal statutes. But instead what the Supreme Court says is “no standing.”

Your point on nationwide injunctions is so important because I don’t think people realize how crucial it is to be able to have a nationwide injunction and stop an illegal and unconstitutional practice all over the country. Otherwise, to challenge it, you’d literally need to bring lawsuits in all 96 federal district courts. The Supreme Court ruling on the merits on birthright citizenship gets headlines, but when it’s about nationwide injunctions, it’s much harder for it to resonate with people or for anyone to understand the long-term consequences of what the Supreme Court is doing.

We’ve talked about the how of it, we’ve touched on the why of it, but I still don’t have for myself a satisfactory theory of the case about what is different in the Roberts court in the first Trump era and the Roberts court now. I’m old enough to remember the court saying no to Donald Trump on the census case. I am old enough to remember a Roberts court that was at least apt to say, as we used to joke on this show, Don’t lie to me, or at least lie to me better. SCOTUS in Trump 1.0 was clear: Don’t embarrass yourself at the Justice Department, and don’t embarrass this court.

With the understanding that Amy Coney Barrett has now taken a seat, and that Justice Jackson has taken a seat since then, I still cannot explain to myself why this court is seemingly willing to abandon the constraints that they put on the first Trump administration. What’s changed?

I think the answer is there’s now six conservative justices. I’m trying to finish a book titled The Sixth Justice, and the thesis of the book is how different it is once there’s six conservative justices. Let me go back even further than the Roberts court to the Rehnquist court, which was also a conservative court, but nothing like this one. It was nothing like this one because back then you had swing justices. You had Sandra Day O’Connor and Anthony Kennedy. So the Rehnquist court, even being conservative, in Grutter v. Bollinger in 2003, upheld colleges and universities engaging in affirmative action, with Justice O’Connor writing an opinion.

Go back to the Rehnquist court. They were willing to say no, in crucial cases, to President George W. Bush. They said that Guantanamo detainees had a right to go to federal court for habeas corpus. They struck down a federal law restricting that. Those cases wouldn’t come out the same way today.

In the earlier years of the Roberts court, you still had Supreme Court decisions that would advance rights. In the second decade of the Roberts court we had Obergefell v. Hodges, where the Supreme Court said that state laws preventing marriage equality were unconstitutional. Justice Kennedy wrote that opinion. Obergefell wouldn’t be decided the same way today with this court.

And so you’re right: In the first Trump administration, the Roberts court said that President Trump couldn’t eliminate the DACA program. It didn’t let the Commerce Department change the rules with regard to the census. Those cases wouldn’t come out this way today because it’s not just six conservative justices, but look at how very conservative Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are. That, I think, is the answer to your question.

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