Weekly Update: 7/1/2025

The Supreme Court completed its term last week, so we thought we'd use this week's update as an opportunity to consider the message being sent by the justices who seem most concerned with protecting our constitutional framework. While the Court issued decisions on a range of topics this term, the most significant theme from the Court's liberal justices, put plainly, was that the federal court is abandoning its commitment to defend the rule of law.

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson shared strong concerns about how the Court’s rulings are affecting American democracy. Taken together, their dissents describe a Court that is unwilling to consistently stop the Trump administration from acting unlawfully.

"With fear for our democracy, I dissent," Justice Sotomayor wrote last year in her dissent in Trump v. United States, 603 U.S. 593 (2024), expressing alarm that the Court was removing limits on presidential power. This year, her concerns and the concerns of others have only deepened.

The Court ended last year's term by immunizing the President from criminal liability for official acts

The liberal justices warned us last year that the Supreme Court had removed important checks on the president, especially by giving former presidents immunity from criminal prosecution for anything considered an “official act.”

“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more.” (603 U.S. 593 (Sotomayor, J., dissenting).)

She warned what this decision might lead to:

“[If the president] Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends." (Id.)

Sotomayor's dissent showed deep worry that the Court has given the president too much power and weakened the idea that no one is above the law.

This term, the Court has made it harder to challenge or stop unlawful government actions more generally

This term extended last year's undermining of key components of the rule of law. It is now harder for people and judges to stop government actions that are illegal, but not necessarily criminal, and are carried out by government officials other than the President himself. In Trump v. CASA, Inc., (606 U.S. ____, (2025)), Justice Sotomayor criticized the majority for limiting who could benefit from a court’s decision. The Court ruled that lower courts can only protect the people who file a lawsuit and not others who might be harmed in the same way.

Justice Jackson describes this in the strongest possible terms:

"The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law." (Id. (Jackson, J., dissenting).)

In her dissent, Justice Sotomayor describes how this would happen.

“Imagine an Executive who issues a blanket order that is blatantly unconstitutional -- demanding, say, that any and all of its political foes be summarily and indefinitely incarcerated in a prison outside the jurisdiction of the United States, without any hearing or chance to be heard in court. Shortly after learning of this edict, one such political rival rushes into court.... [D]espite that rival’s success... [judges would be powerless to save any of the President's other targets].” (Id., (Sotomayor, J., dissenting).)

The liberal justices are also alarmed by recent emergency rulings where the Supreme Court has actively stopped lower courts from enforcing the law against the Trump administration. For example, the Court allowed the Trump administration to start deporting people again without giving them a chance to challenge their removal, even when they might face torture or worse. (See DHS v. D.V.D., 606 U. S. ____ (2025).) In a strong dissent, Justice Sotomayor explained that the Court helped the administration even though it had already ignored several court orders. Sotomayor wrote that “this Court now intervenes to grant the Government emergency relief from an order it has repeatedly defied.” (Id. (Sotomayor, J., dissenting).)

She was able to point to several examples of the Trump administration's defiance that the Supreme Court has chosen to ignore: attempting to deport a gay man to Guatemala even though a judge ruled he would face torture; putting six men on a plane to South Sudan despite court orders; and trying to deport people to Libya without waiting for a ruling. “This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last,” she wrote. (id.)

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It is important to keep these dissents in context. President Trump and his administration are not currently assassinating or rounding up political opponents, nor is Trump routinely carrying out crimes that normally lead to prosecution. Federal trial courts still hear lawsuits against the federal government and issue rulings. And some state governments continue to check federal power.

What Justices Sotomayor, Jackson, and Kagan are saying is that the Supreme Court is actively and fundamentally reshaping our nation's constitutional structure in ways that put our democracy at risk. Three justices of the United States Supreme Court are sounding the alarm that the guardrails of democracy are coming loose. In stark terms, they are telling us that the federal courts can no longer be counted on to stop Trump from taking even blatantly unlawful action, should he choose to. That Trump has not yet taken full advantage of this is of little comfort to those who fear he will.