The question of whether President Donald Trump may, without seeking permission from Congress, demolish much of the White House and replace it with his own projects is now before the Supreme Court. 

Last fall, construction crews acting under Trump’s orders abruptly tore down the East Wing of the White House, the first step in Trump’s plan to replace the historic building with an enormous ballroom. A conservationist organization, the National Trust for Historic Preservation, soon sued to stop the construction on the ballroom in a case that is still ongoing. Lower courts have thus far agreed with this plaintiff that the ballroom is illegal. 

Last week, Trump formally asked the justices to greenlight his ballroom while the challenge works its way through lower courts. The case is known as National Park Service v. National Trust for Historic Preservation. 

Trump’s claim that he may tear down large sections of the White House and replace them with the ballroom is not supported by law. A federal statute provides that “a building or structure shall not be erected on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.” Although Trump’s lawyers claimed that two separate statutes allow him to get around this provision, the federal appeals court that heard National Park Service thoroughly dismantled that claim in a 101-page opinion. 

That said, the Court could potentially hand Trump a victory by prohibiting anyone from bringing a lawsuit against his ballroom to begin with. Should this argument succeed, it could have major ramifications for a wide range of laws that seek to conserve environmental resources or preserve sacred or historical sites. 

Under current law, a plaintiff who alleges that a defendant’s actions will illegally damage such a site may file a federal lawsuit so long as they can demonstrate that they plan to visit the site in the near future and will find the site less attractive if it is altered. This is exactly what happened in National Park Service: A member of a conservationist group — the National Trust for Historic Preservation — who often went by the White House said the new construction would diminish the beauty of the site.

More broadly, the Court has long held that plaintiffs who wish to observe something beautiful may often sue to enforce environmental statutes that seek to preserve that beauty. As the Court said in Lujan v. Defenders of Wildlife (1992), a seminal case that is often cited because it laid out limits on who is allowed to bring federal lawsuits, “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest” that can be asserted in federal court.

Trump’s brief, however, rejects this longstanding rule. Without it, numerous environmental, conservationist, and historical preservation laws could effectively cease to function, because no one would be able to file a lawsuit enforcing them.

The stakes in National Park Service, in other words, are far greater than whether Trump can replace the East Wing with an eyesore. And they are even greater than the question of whether Trump can remake one of America’s most cherished landmarks without congressional authorization. If Trump prevails in National Park Service, he could fundamentally wound America’s environmental protection regime in the process.

Trump’s ballroom is illegal

Recall that federal law bars new construction on federal lands within the District of Columbia “without express authority of Congress.” So, unless there is some existing statute that allows Trump’s ballroom to move forward, the ballroom is illegal.

But Trump cited no such law in his brief. Instead, he relied on two statutes that might be read to authorize parts of what Trump needs permission to do.

The first is a provision that permits Congress to appropriate money that the president may use to pay for “the care, maintenance, repair, alteration, refurnishing, improvement, air-conditioning, heating, and lighting (including electric power and fixtures) of the Executive Residence at the White House.” But, as the appeals court that ruled against Trump explained, there are numerous reasons why this statute cannot be read to permit the ballroom. 

The most straightforward reason is that Congress only gave the president a $2.475 million budget to spend under this statute. But Trump’s lawyers claimed this project will be funded by “approximately $400 million in private donations.” So, even if Trump’s ballroom counts as an “alteration” or “improvement” of the existing “Executive Residence at the White House” — and all three of these points are contested — Trump cannot use his White House maintenance budget to fund a $400 million project.

To get around this problem, Trump’s lawyers argued that the National Park Service is allowed to accept private donations, so it can use donated money to build the ballroom.

But, while it is true that the Park Service may accept donated funds, that doesn’t mean that it can use these funds to tear down an historic federal building and replace it with something completely different. The relevant federal law permits the Park Service to “promote and regulate the use of the National Park System by means and measures that conform to the fundamental purpose of the System units, which purpose is to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”

This law could not be clearer that it calls on the Park Service to “conserve” historic objects such as the East Wing and to leave them “unimpaired for the enjoyment of future generations.” So, if anything, this law prohibits Trump from using Park Service funds to build his ballroom. Tearing down an historical structure and replacing it with a different, much larger, and architecturally distinct structure is the opposite of conservation.

Still, there’s one big reason why Trump’s argument might win over the justices anyway. According to Trump’s brief in the case, the ballroom will sit on top of an enormous bunker that extends five stories underground and that includes “bomb shelters,” “secret military structures and equipment,” and “state of the art hospital and medical facilities.” The lower courts have already permitted construction on this bunker to continue; its legality isn’t before the justices. 

Trump’s lawyers’ attempt to characterize the ballroom as part of what their brief calls an “integrated military complex” is savvy, as the courts often defer to the other branches on questions of national security. And Trump’s Justice Department also makes an argument that plausibly could persuade this Supreme Court to rule in Trump’s favor despite the fact that the ballroom has no legal support. 

The most significant legal issue in National Park Service is whether anyone is allowed to sue in order to challenge the ballroom

As a general rule, no one is allowed to file a federal lawsuit unless they have been injured in some way by the defendant that they are suing; this requirement is known as “standing.” But the Court has long held that plaintiffs may challenge illegal practices that might alter the aesthetic beauty of a site that is protected by law. As the Court said in Friends of the Earth v. Laidlaw Environmental Services (2000), “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.’”

Friends of the Earth does not permit literally anyone to challenge any alteration to protected lands or buildings. Such a plaintiff only has standing if they can show that they will visit the site at issue in their lawsuit and that the planned alterations to that site will actually reduce their aesthetic enjoyment of it — but that’s enough.

The plaintiff in National Park Service is a conservationist organization whose members include a professor emerita of architectural history who said that she travels “to the White House neighborhood frequently”; that she “regularly view[s] the White House”; and that she believes that Trump’s proposed ballroom would render the White House less attractive because it would “diminish the primacy of the White House,” because “no longer would the eye be drawn to the jewel of the building at the center,” aka the residential section of the White House complex.

Thus, because organizations are typically allowed to sue on behalf of their members, this conservationist group has standing. They have at least one member who clears the low bar the Court set in Friends of the Earth.

Trump’s brief, however, dismissed this “seeing-is-standing theory,” claiming that the professor’s mere discomfort, produced by “‘observation of conduct” that she disagreed with is “not an injury sufficient to confer standing.” Trump, in other words, is effectively asking the Court to overrule Friends of the Earth, along with many other cases establishing that plaintiffs may often sue over aesthetic injuries.

If that gambit succeeds, the consequences for conservationist laws of all kinds would likely be catastrophic. As the appeals court explained, Trump’s “cramped standing theory would deem no one injured by a decision to raze the Statue of Liberty, to obscure the names on the Vietnam War Memorial, or to install a political billboard atop Mount Rushmore.” It could also prevent private lawsuits against a company that dumps foul-smelling chemicals in a national park.

The whole point of many environmental and historical preservation laws is to ensure that something that Congress believes is beautiful will remain beautiful. If no plaintiff can assert an aesthetic injury, that means that laws intended to preserve pristine, sacred, or historical sites will go unenforced — and may become completely unenforceable.

So, the stakes in National Park Service are quite high. While Trump’s statutory arguments are meritless, this case is potentially an existential threat to numerous environmental laws. The question is whether the justices will be persuaded by some combination of Trump’s attacks on Friends of the Earth and his allusions to national security to upend many decades of established law.

The Republican Party’s supermajority on the Supreme Court was barely a month old when the justices handed down one of the most consequential religion decisions of the last several decades. It was Amy Coney Barrett’s first significant vote as a justice.

The issue in Roman Catholic Diocese of Brooklyn v. Cuomo (2020) was whether churches and other houses of worship were exempt from Covid-era restrictions on attendance. At the height of the pandemic, New York imposed strict limits on how many people could attend worship services at the same time — a rule that steered straight into the emerging partisan divide over whether pandemic restrictions had gone too far — although these restrictions were actually less stringent than the rules imposed on similar secular venues like theaters and lecture halls. 

Just months earlier, a 5-4 Court had upheld similar restrictions in California, with Republican Chief Justice John Roberts joining the Court’s Democrats. Although Roberts typically votes with his fellow Republicans in religion cases, he worried that the judiciary “lacks the background, competence, and expertise to assess public health” and decide life or death matters like how to halt the spread of Covid. The Court’s other four Republicans dissented, but this was before Barrett joined the Court, so they were still in the minority.

But the new majority’s decision in Roman Catholic Diocese rejected this restrained approach, and the decision fundamentally shifted the Court’s approach to lawsuits seeking religious exemptions from state laws. Before Republicans gained their supermajority on the Court, the justices gave states a fair amount of leeway to navigate the fraught political questions that arise when someone exercises their faith in a way that can harm other people, or limit their legal rights. 

But now the justices typically make these calls themselves, and they usually do so in favor of religious conservatives. As a result, under the current Supreme Court, one of the Constitution’s most difficult balancing acts — the task of weighing when one person’s religious beliefs should overcome another person’s freedoms — has toppled over on the side of religious individuals and groups, often allowing them to violate the freedoms of others. This is especially true when lawsuits pit religious conservatives against people exercising sexual freedoms such as the right to use birth control or to marry a person of the same sex.

Prior to Roman Catholic Diocese, the rule was that religious institutions must comply with state law, so long as the state does not single people of faith out for inferior treatment. If a state closed all venues where people gather in auditorium-like settings, that was considered constitutional, even though some of those venues are churches. The courts would only get involved if a state tried to, say, close mosques but not movie theaters.

But Roman Catholic Diocese effectively ended that regime. The new majority held that churches may only be subject to the least restrictive rules that apply to any secular business, even if that business bears little resemblance to a house of worship. Indeed, Roman Catholic Diocese indicated that churches must be treated the same as outdoor facilities like “camp grounds” or “garages” where the risk of transmission, compared to a church, was minimal.

It was a clear sign of where the Court’s new majority wanted to take its religion cases. Under this majority, lawsuits brought by plaintiffs seeking religious exemptions from the law have largely been used to resolve cultural disputes between Democratic and Republican constituencies in favor of the latter. 

This Court’s religion cases, in other words, fit a pattern that is also found in its decisions on topics as diverse as voting rights, abortion, race, and the question of whether President Donald Trump is subject to US law. The Republican justices seek to advance policy goals that are popular within their political party and unpopular among Democrats, and they aren’t afraid to overrule a wide range of foundational Supreme Court precedents in order to do so.

More broadly, the Court’s new approach to religion threatens to disrupt public schools’ ability to operate, undercut many anti-discrimination laws, and potentially turn every future conflict between cultural liberals and the religious right into a constitutional case that must be resolved by the Supreme Court.

Conflicts between religious and secular visions of America are inevitable under the Constitution

Many of the Supreme Court’s religion cases are driven by two separate clauses in the Constitution that often pull in opposing directions. The First Amendment contains two provisions governing religion, the clause protecting “free exercise” of faith, and a clause prohibiting the government from making any law “respecting an establishment of religion.” The first provision guarantees everyone the right to practice their faith, while the latter was historically understood to prohibit the government from trying to advance a particular religious belief.

As the Supreme Court said in 1971, there is an “internal tension” between these two provisions — in part because it is inevitable that the government will make decisions that conflict with many people’s sincere religious beliefs. Taxes fund wars that many Americans believe are sinful. Public schools teach values that may be at odds with what their students hear in their temples, churches, synagogues, and mosques. Not long after Congress prohibited racial discrimination by restaurants in 1964, the owner of a South Carolina barbecue joint claimed that he could not comply because serving Black people violated his white supremacist religion (he lost in the Supreme Court).

Before Roberts was crowned as leader of America’s judiciary, the Court often resolved this tension by deferring to democratically elected officials. The Court permitted states to subsidize religious schools, but did not require it. It gave people who object to laws on religious grounds some exemptions from those laws, but did not allow these exemptions to give religious business owners an unfair advantage against their competitors. As the Court said in Locke v. Davey (2004), there must be some “play in the joints” between the competing values espoused by the Constitution’s two religion clauses.

But the current Court, which often seeks to centralize power within itself, has pushed hard to take away states’ ability to resolve some of these tensions, and instead resolves them itself. Under the old regime, blue states would sometimes operate their schools, or otherwise conduct their affairs, in ways that upset religious conservatives. And that was okay because that’s how things work in a multistate democracy.

This Court’s religion policies are both anti-federalist and anti-democratic. They restrict Colorado’s ability to bar anti-LGBTQ discrimination by religious business owners, and they force Maine to fund religious schools that label gay people “deviants” and “perverted.” These policies seek to impose a red-state vision on all 50 states, and, in some cases, they may go even further than that — requiring the government to subsidize religion in ways that even very conservative states reject. 

The Republican justices, in other words, have taken two vague constitutional provisions that espouse sometimes-conflicting values, and that reasonably can be read in many ways, and used them to impose their own values on the entire nation. The primary effects of these decisions are twofold: This Court often elevates religious freedom over other kinds of freedom, and it is rapidly tearing down the wall between church and state.

Religious freedom vs. others’ rights: The tug-of-war over the free exercise clause

The 20th-century Court cases that laid the groundwork for many modern debates over the Constitution’s free exercise clause are a bit of a muddle. 

In the 1960s, the Court used expansive language to describe the scope of this clause, and how easy it should be for religious plaintiffs to seek exemptions from complying with the law. Sherbert v. Verner (1963) held that laws that burden someone’s faith must “be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate.’” As any law student who has passed their first semester of constitutional law will recognize, this “compelling state interest” language is associated with a legal test known as “strict scrutiny,” the most demanding standard that courts apply in constitutional cases. Thus, Sherbert seemed to hold that nearly everyone who seeks a religious exemption from a state or federal law should receive one.

But the Court soon grew uncomfortable with the implications of this broad language — should people who claim that God does not want them to pay taxes, for example, really be exempt from the obligation to do so? — and began to place limits on who could get exemptions. 

The Court has ruled at least three times in favor of religious conservatives who sought an exemption from state laws or municipal policies that prohibit discrimination against LGBTQ people.

The expansive and easily available religious exemptions that Sherbert seemed to call for never actually came about. A 1992 study by legal scholar James Ryan found that federal appeals courts heard 97 free exercise of religion cases that applied Sherbert’s compelling interest test between 1980 and 1990, and they rejected 85 of those cases. 

In United States v. Lee (1982), the Supreme Court rejected an employer’s demand for a religious exemption from paying Social Security taxes. And, in Alamo Foundation v. Secretary of Labor (1985), it ruled against a religious cult whose members worked in commercial businesses for no pay — the cult claimed that it should be exempt from minimum wage laws.

Both decisions were animated by a concern that a too-expansive reading of Sherbert would allow businesses that claimed religious exemptions to gain unfair advantages over their competitors. As the Court held in Lee, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

But then the Supreme Court went too far. 

In Employment Division v. Smith (1990), the objectors were two Native American men who lost their jobs and were denied employment benefits by the state of Oregon, because they used the drug peyote during a religious ceremony. The Court said that no one was exempt from any law so long as it applied equally to religious and nonreligious people alike.

The decision triggered instant backlash, with Sen. Edward Kennedy (D-MA) warning that Smith could lead to the government controlling “the selection of priests and ministers” and barring “the use of wine in communion service.” It’s likely that Smith was so widely disliked because the justices picked the worst possible case to put their foot down against religious objectors. The two men’s participation in a religious ritual did not injure anyone else. And the Court’s suggestion that the government may ban Native American religious practices smacked of colonialism.

Congress attempted, semi-successfully, to overrule that case when it enacted the Religious Freedom Restoration Act of 1993 (RFRA). 

RFRA sought to “restore the compelling interest test as set forth in Sherbert … and Wisconsin v. Yoder,” a 1972 case establishing that Amish communities may educate their own teenage children instead of sending them to public high schools. The law, in other words, was intended to be a reset button, returning to the pre-Smith status quo when plaintiffs seeking religious exemptions were more likely to prevail.

But achieving that goal required answering a difficult question: What did the Religious Freedom Restoration Act actually seek to restore? Was it the expansive reading of Sherbert that courts never actually implemented — ie., that nearly everyone who seeks a religious exemption should get one — or the actual practice that existed prior to Smith, which was far more restrained?

By the time Burwell v. Hobby Lobby (2014) reached the justices, the two major political parties both had divergent answers to this question. That case asked whether employers who object to contraception on religious grounds could refuse to provide their employees with health plans that cover birth control — despite a federal regulation establishing that these workers had a right to contraceptive coverage. The central question in Hobby Lobby, in other words, was whether one person’s religion may be invoked to diminish another person’s rights.

Most of the justices, the ones appointed by Republican presidents, answered this question with a resounding “yes.” 

Dissenting in Hobby Lobby, Democratic Justice Ruth Bader Ginsburg laid out her political party’s concern that one person’s rights should not be used to diminish another’s. She rejected the view that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith.” 

But there were five Republicans and only four Democrats on the Court when Hobby Lobby was decided, so Ginsburg’s view did not prevail. Justice Samuel Alito’s majority opinion says that RFRA imposes an “exceptionally demanding” burden on the government when it wishes to enforce a law against a religious objector, and it ruled that a federal regulation requiring employers to offer contraceptive care in their health plans does not overcome this burden.

Yet even Alito seemed to recoil at the most expansive reading of Sherbert. His opinion concedes that “allowing tax-payers to withhold a portion of their tax obligations on religious grounds would lead to chaos.” So at least some aspects of Lee, the decision holding that private businesses must follow the same laws as their competitors, remain good law. 

After Hobby Lobby, the Republican Party’s position appears to be that religious objections trump laws that embrace a more liberal view of sexuality, or that otherwise resolve cultural conflicts between Democratic and Republican constituencies, but people of faith may not claim an exemption from literally every single law. At the very least, everyone still has to pay taxes.

Since Hobby Lobby, this agenda has come to define the Court’s religious liberty cases, including a number of recent ones that limit state governments’ ability to navigate political conflicts between religious conservatives and gay or trans people. While these cases are technically distinct from Hobby Lobby because RFRA only benefits plaintiffs who object to federal (that is, not state) laws, they also track the result in Hobby Lobby. 

The Court has ruled at least three times, for example, in favor of religious conservatives who sought an exemption from state laws or municipal policies that prohibit discrimination against LGBTQ people.

The Roberts Court, in other words, inherited a muddled mess of precedents governing when religious objectors may seek exemptions from the law, and much of this area of the law remains fairly muddled. Thus far, for example, this Court has not revealed whether it wishes to overrule cases like Alamo Foundation, that protect the rights of workers — though when it took up a case in 2025 that could have called Alamo Foundation into question, the Court did not do so.

But one bit of clarity that the current Court has provided is that, when the interests of religious conservatives conflict with the interests of queer people, queer people lose.

The Roberts Court has used education cases to tear down the wall separating church and state

Many of the Court’s cases involving religion in public schools also empower religious conservatives in cultural fights against LGBTQ Americans. In Mahmoud v. Taylor (2025), for example, the Republican majority held that religious parents who object to books with gay or trans characters must be allowed to opt their children out of lessons that use such books. And, in Mirabelli v. Bonta (2026), the Republican justices appeared to hold that the Constitution requires public school teachers to out trans students to their parents, even if those students ask the teachers to keep their gender identity a secret.

But this Court has also advanced another project concerning religion, particularly in its cases about religion and education — dismantling the very idea that church and state must be separated. 

The First Amendment’s establishment clause — which prohibits the government from making any law establishing a religion — was long understood to require a degree of separation between government and religion. The Roberts Court hasn’t simply abandoned this reading of the establishment clause; it’s indicated that the very idea of separation between church and state is unconstitutional.

For much of the 20th century, the Supreme Court maintained that the wall separating church and state was quite high. In Everson v. Board of Education (1947), for example, the Court declared that “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” 

The Court abandoned this approach nearly a quarter century ago, in its 5-4 decision in Zelman v. Simmons-Harris (2002). But Zelman merely held that states could offer vouchers that can pay for tuition at private religious schools if they want to, not that they were required to do so.

One thing that is emphatically not forbidden by the current Court is government funding of religious institutions that many Americans find offensive. 

Similarly, before Chief Justice John Roberts joined the Court in 2005, the Court generally insisted that public schools must remain neutral on religion. When schools promote a religious view, according to Lee v. Weisman (1992), that places “subtle and indirect” pressure on students to conform to that view, and leaves the student with “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”

Yet, while Lee was consistent with mid-20th-century precedents regarding religion in schools, the consensus favoring government neutrality on religion was already fading by the early 1990s. Lee was a 5-4 decision, and its author, the moderate conservative Justice Anthony Kennedy, often argued that his more liberal colleagues read the establishment clause too expansively. Three years before Lee, for example, Kennedy dissented from a decision barring a county from displaying a Nativity scene in its courthouse. This decision, Kennedy wrote, “reflects an unjustified hostility toward religion.”

This idea — that government neutrality toward religion is itself a form of hostility against people of faith — could often be found in conservative critiques of the Court’s establishment clause decisions from this era. In a 1989 essay that foreshadowed many of the Roberts Court’s later decisions, legal scholar (and future federal judge) Michael McConnell made the then-audacious argument that the Constitution requires the government to subsidize religious schools.

The idea is that states typically tax all of their residents to pay for public schooling, but only some children actually attend these schools. Other families choose to pay out of their own pockets for private religious education, while still other families would prefer to send their children to a religious school but cannot afford it. This familiar system, where public schools are available to everyone and private schools are only available to people who can pay the tuition, McConnell claimed, is a form of discrimination against religious people. 

“That some parents wish their children to receive education in a religious environment should not deprive them of their fair share of the public resources devoted to education,” McConnell wrote. They pay the same taxes as families who send their kids to public schools. And so, McConnell argued, these religious families should be allowed to use that tax revenue to pay for their child’s private religious education.

Something close to the vision McConnell laid out in this 1989 essay is now the law. The seminal case is Carson v. Makin (2022), which involved a Maine program that provides private school vouchers for students in sparsely populated areas where it is not cost-efficient for the state to operate a public school.

Maine law provides that these vouchers may only be used at “nonsectarian” schools, and not religious ones. But, according to Roberts’s majority opinion in the decision, a system that “pays tuition for certain students at private schools — so long as the schools are not religious” is “discrimination against religion.” Carson, in other words, turns the old rule from Everson on its head. What was once forbidden is now mandated.

More broadly, the Court’s Republicans have ground the establishment clause down to such a tiny nub that little of it remains. For many years, the Court read that clause to forbid the government from advancing a particular religious view, but the Court overruled the older cases prohibiting government endorsements of religion in Kennedy v. Bremerton School District (2022), and they replaced them with something much narrower. Under this Court’s new test, the government can only violate the establishment clause by making “a religious observance compulsory” or otherwise coercing nonbelievers to engage in a “formal religious exercise.”

So the government cannot arrest you if you skip church services. Nor can a government official hold a gun to your head and force you to declare that Jesus is your personal lord and savior. But it is not clear that, under this Court’s approach to the establishment clause, anything else is forbidden. One thing that is emphatically not forbidden by the current Court — indeed, under cases like Carson, it is now required in many states — is government funding of religious institutions that many Americans find offensive. 

A plaintiff in Carson, according to Maine’s brief in that case, wanted the state to pay for tuition at a school that requires teachers to sign a statement agreeing that “God recognize[s] homosexuals and other deviants as perverted.” Previous federal court cases involved schools that teach girls they have a religious obligation to be subservient to their future husbands, or that prohibited Black students from having romantic relationships with white students. Under the Roberts Court’s new rules, taxpayers who find these views abhorrent — or who may even object to them on religious grounds — must nonetheless pay for tuition at schools that teach these values.

McConnell criticized the old regime for taxing religious parents to pay for secular education they find objectionable, but the converse is also true about the current regime — it taxes secular parents to pay for religious education that many Americans also find objectionable.

One nationwide solution

The unfortunate reality is that, in a pluralistic society, it is impossible to come up with a legal regime that won’t impose obligations on anyone that they object to on religious grounds. If a nation taxes citizens, some of them will object to how that money is spent. If it provides public schools, some families will object to the values taught in those schools. And if it changes which values are taught, some other families will object to the new lessons. 

The Roberts Court’s solution to these inevitable conflicts has largely been to resolve them in ways that favor members of the Republican Party’s coalition, such as religious conservatives, that burden members of the Democratic Party’s coalition, such as LGBTQ people, and that advance longtime Republican Party goals such as making private school vouchers widely available. 

That’s certainly one way to do constitutional law. The GOP controls the Supreme Court, and to the victor go the spoils.

But it is far from clear why many of these decisions should be made by a handful of unelected lawyers in black robes, especially in a nation that purports to be a democracy — and that also purports to be a federation of many diverse states. There was a lot of wisdom in Zelman’s approach, which allowed Maine to devise an education policy that makes sense for Maine and Alabama to devise an education policy that makes sense for Alabama. 

At the very least, cases like Zelman did not claim that the Constitution, with its two vague and often-contradictory approaches to religion, calls for one nationwide solution to the question of how to run a country made up of people of many faiths.

Last week, President Donald Trump issued a new executive order that purports to strip citizenship from some Americans. 

This isn’t our first time here: Last year, Trump issued an executive order that attempted to strip citizenship from many Americans born in this country. Months later, in response to a lawsuit brought over Trump’s order, the Supreme Court reaffirmed that everyone born in the United States who is subject to US law is a citizen. The Court’s decision in Trump v. Barbara (2026) was hardly a surprise, as the Court first ruled that everyone born in the US and subject to its laws are citizens in United States v. Wong Kim Ark (1898).

Still, the Barbara decision did invalidate an executive order from Trump. And that made him very angry. The new order appears to be a response to that 2025 Supreme Court decision, though it is much narrower than his original one.

In this sense, Trump appears to be experimenting with where the line is for the justices when it comes to birthright citizenship. When Trump’s first order came before the Court in Barbara, there was more than a century of precedent establishing that the order was unconstitutional. Nevertheless, four justices voted to overrule at least some of that precedent. 

Now, with the new order, Trump is testing whether a smaller bite at the apple is enough to win over one of the justices who voted with the majority in Barbara — two of whom are Republicans. If he manages to hold onto the four dissenters in Barbara and pick up just one more justice’s vote, his new order will stand. It’s a plausible outcome, and one that could potentially foreshadow future efforts to chip away at birthright citizenship.

What does the order actually do?

Trump’s first citizenship order, the one struck down in Barbara, attempted to strip citizenship from many Americans whose mothers were either undocumented or legally-but-temporarily present in the United States when they were born. Had this order been in effect at their birth, it would have stripped citizenship from many prominent Americans, including former Vice President Kamala Harris.

The new order, entitled “Continuing to Protect the Meaning and Value of American Citizenship” is much narrower; indeed, it’s unclear some of the categories of people it hopes to denaturalize actually exist. The new order, for example, purports to strip citizenship from children of two non-citizen parents when either parent belongs to a “designated Foreign Terrorist Organization.”

So, in the unlikely event that, say, a member of Al-Qaeda impregnated a non-US citizen woman who later gave birth on US soil, Trump’s order would mandate that the child’s US citizenship would be taken away. 

Another provision purports to strip citizenship from the children of foreign nationals who work in their nation’s embassies or in similar diplomatic capacities but who do not enjoy diplomatic immunity from US law. Again, it’s unlikely that all that many children fall into this category, given the relatively small number of these jobs.

The largest group of people that Trump targets in his new order is children whose parents “engage in a commercial transaction to ensure that the person’s mother is present in the United States” for their birth, such as by buying a plane ticket to enter the United States while pregnant. But this category is also fairly small. 

In 2024, the Centers for Disease Control and Prevention reported that 9,576 people were born in the United States to residents of foreign countries — out of about 3.6 million annual births — though it is unclear how many of these babies would be affected by Trump’s new executive order, because we don’t know if their mothers entered the United States “to ensure” that their child we be on US soil when born.

So, what does the Constitution actually say about birthright citizenship?

The question of whether people born in the United States are citizens was, until fairly recently, one of the most uncontroversial questions in US law. When Judge John Coughenour, a Reagan appointee, handed down the first court decision blocking Trump’s original attack on birthright citizenship, he commented that he’d “been on the bench for over four decades [and]…can’t remember another case where the question presented is as clear as this one is.”

The relevant provision of the Constitution’s 14th Amendment provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” So, everyone born in the US, regardless of their parent’s immigration status, past behavior, or membership in a particular organization are citizens — unless they are not “subject to the jurisdiction” of the United States.

As the Court recently reaffirmed in Barbara, moreover, a child is within US jurisdiction if they are “subject to American law.” So, if undocumented immigrants and their children were not subject to US jurisdiction, that would mean that it was illegal to arrest and deport them. And, if members of foreign terrorist organizations were not subject to US law, that would mean that it is illegal for the US government to prosecute them for committing terrorist acts.

That said, Wong Kim Ark did recognize a few narrow categories of individuals who are present in the US but not subject to its laws — two of which are still relevant today. Children of invading foreign armies do not receive birthright citizenship, nor do children of foreign ambassadors and other diplomats who are immune from US law.

As the Court clarified in Barbara, both of these exemptions are derived from an old English rule that provided that the King could not convey citizenship to “those born in lands that he did not control.” Thus, when a foreign military occupied English soil and stripped the King of his ability to rule over those lands, children born to members of that military were not citizens.

The exemption for ambassadors and some other foreign diplomats, meanwhile, flows from what Barbara described as a “fiction of extraterritoriality.” While senior diplomats are present in the United States, they are nonetheless deemed to “remain on foreign soil” and thus are not subject to US law.

But not all employees of foreign governments qualify for this diplomatic immunity. Consider, for example, the tragic facts of Moncada v. Rubio (2025), a recent federal appeals court decision holding that a man who lived as a US citizen for nearly seven decades was not, in fact, a citizen. 

Roberto Moncada is the son of a Nicaraguan diplomat who worked in the United Nations when Moncada was born in 1950. The US government previously concluded that Moncada’s father served as a “consul” when his son was born, and, thus, Moncada was a US citizen, because consuls and their families do not enjoy diplomatic immunity. But, in 2018, the US government discovered that Moncada’s father was actually an “attaché,” a more senior diplomat who does enjoy immunity. And then, the father’s diplomatic immunity cut the son off from US citizenship.

Under these principles, several provisions of Trump’s new executive order are unconstitutional, at least in part. The provisions stripping citizenship from the children of employees of foreign governments are lawful to the extent that they apply to children of people with diplomatic immunity but unconstitutional to the extent they apply to lower-ranking individuals with no immunity. 

The provision dealing with members of foreign terrorist organizations is also unconstitutional, since people who engage in terrorism on US soil are very much subject to US law — as are babies born on US soil to parents connected to terrorism. Although, in the unlikely event that a foreign terrorist group actually seized control of some portions of US soil, then the exemption for children of invading armies would likely apply. 

The provision dealing with so-called “birth tourists” is also unconstitutional, because a pregnant woman who enters the United States to ensure that their child is a US citizen is subject to US law, as is her child.

Indeed, Trump appears to concede this later point in a separate executive order handed down at the same time as his “Continuing to Protect” order. The second order, entitled “Ending Birth Tourism,” instructs two federal cabinet departments to update their rules to discourage alleged birth tourists from entering the country, including by taking “appropriate action to prevent the entry into the United States of, or the granting of any visa or other travel authorization” to such individuals. But, again, if the United States has the power to deny visas or otherwise bar these individuals from entering the country, that means that they are subject to US jurisdiction.

Why Trump keeps trying to restrict birthright citizenship

So, the Constitution’s text, the Court’s venerable decision in Wong Kim Ark, and its brand new decision in Barbara are all clear about who qualifies for birthright citizenship. All of these authorities establish that much of Trump’s new executive order is unconstitutional, because it purports to strip citizenship from people who are subject to US jurisdiction.

But that doesn’t necessarily mean that the order will be struck down. While Barbara did little more than reaffirm the same rule the Court announced nearly 130 years ago in Wong Kim Ark, four justices dissented in Barbara — although, these justices also released four separate opinions with four separate definitions of who does and does not qualify for birthright citizenship. So, on this Supreme Court, the mere fact that a legal question has been settled for more than a century does not prevent many of the justices from voting to unsettle it.

Indeed, this Court does not even reliably follow its own recent precedents. The Court’s decision in Louisiana v. Callais (2026), which repealed a 1982 amendment to the Voting Rights Act and limited Congress’s power to prevent race discrimination in elections, was wholly at odds with the Court’s three-year-old decision in Allen v. Milligan (2023). The Court’s decision in Medina v. Planned Parenthood (2025), which repealed a federal law permitting Medicaid patients to choose their own doctors, cannot be squared with its decision two years earlier in Health and Hospital Corporation v. Talevski (2023). 

So, while two of the Court’s Republicans joined all three of its Democrats in Barbara, it is possible that at least one of those Republicans will vote with the dissenters on a narrower question, like whether Trump can strip citizenship from the children of so-called birth tourists. And even if all of the justices in the Barbara majority hold the line, if one of them leaves the Court while Trump is still in office, he will almost certainly replace them with someone who opposes birthright citizenship.

So, while Trump’s executive orders often defy the Constitution’s explicit text, Trump also understands something important about US law: It doesn’t actually matter what the Constitution says if you have five votes on the Supreme Court who are willing to do what you want them to do.

For a brief moment late last week, it looked like acting Attorney General Todd Blanche’s bid to get the word “acting” removed from his job title was in serious trouble. But that moment appears to have passed, as two key Republican senators just signaled that they will vote to move his nomination forward.

Sens. John Cornyn (R-TX) and Thom Tillis (R-NC) halted Blanche’s nomination because of concerns about a $1.8 billion slush fund that Blanche helped create as the Justice Department’s acting leader, as well as some objections to a collusive deal between President Donald Trump and the IRS that could have shut down tax investigations into Trump, his family, and his businesses. Both senators announced on Monday that they will no longer block the nomination.

Though these two senators, both of whom are retiring in January, did extract some minor concessions from the Department of Justice in return for their votes, they objected to only a small fraction of Blanche’s efforts to transform the DOJ’s lawyers into Trump’s personal advocates and enforcers. The fact that Blanche is likely to be confirmed, despite his sycophancy toward Trump, suggests that any meaningful guardrails on a weaponized Justice Department have ceased to exist.

Cornyn and Tillis both currently serve on the Senate Judiciary Committee. That committee, where Republicans currently have a two-vote majority, was originally scheduled to vote on Blanche’s nomination Thursday — but that vote would have failed if Cornyn and Tillis rejected the nominee. And, now, it’s likely to go ahead.

Cornyn and Tillis’s objections to Blanche were quite narrow in scope. They demanded a written order from Blanche “terminating the anti-weaponization fund,” a reference to the $1.8 billion slush fund that could be paid out to Trump’s allies, including participants in the January 6 attack on the US Capitol. Blanche originally established this fund in a May 18 order. On Sunday night, he tweeted out a new document terminating his May 18 order. 

Cornyn also objected to the breadth of settlement between Trump and the IRS — which could be read to permanently cut off that agency’s power to audit Trump, his companies, or many members of his family — but only sought to narrow this settlement’s scope.

For the most part, however, the two senators did not object to Blanche’s broader efforts to weaponize the Justice Department against people who’ve displeased Trump, including the use of law enforcement to cow Trump’s critics. As both deputy attorney general and as acting attorney general, Blanche oversaw several highly dubious prosecutions brought against Trump’s perceived enemies and prominent Democrats.  

A video introduced in federal court, for example, indicated that Blanche personally instructed law enforcement officers to arrest Newark’s Democratic Mayor Ras Baraka — an arrest that led a federal magistrate judge to scold the DOJ for “using the immense power of the government to pursue weak cases or to make examples without sufficient cause.” Under Blanche’s oversight, the DOJ’s also brought flimsy charges against individuals like former FBI Director James Comey and New York state Attorney General Letitia James, who investigated Trump for potential wrongdoing. (One minor exception: Tillis did previously pressure Blanche to drop an investigation into former Federal Reserve chair Jerome Powell.)

So, while Cornyn and Tillis successfully pushed Blanche to make some small concessions in order to secure their votes in the Judiciary Committee, neither senator appeared interested in a confrontation over Trump and Blanche’s broader efforts to transform the DOJ into a revenge-seeking agency. And now, it appears likely that Blanche will be confirmed — and that those efforts will continue. 

What did Blanche actually agree to do in order to get Cornyn and Tillis’s votes?

Earlier this year, Trump, the Trump Organization, and Trump’s two oldest sons sued the IRS, claiming that it failed to prevent a contractor from leaking some of Trump’s tax documents. The president originally demanded a $10 billion payout from the federal government, and the lawsuit triggered widespread concerns about a conflict of interest, because Trump was both the plaintiff and the chief executive of the government he sued.

On May 18, a little over a month after Blanche became the federal government’s top lawyer, Trump (and the other plaintiffs) entered into a “settlement agreement” that did not include a $10 billion payday for Trump but that did include several provisions favorable to Trump, his family, and his companies. 

Among other things, the settlement announced the creation of the “anti-weaponization fund,” which would distribute money to an unknown group of people who claim they were unfairly targeted by previous administrations based on decisions by five individuals appointed by Blanche. It also included a provision claiming that the IRS (and potentially other federal agencies) is “FOREVER BARRED” from pursuing any claims that “have been or could have been asserted by Plaintiffs” — open-ended language which sparked fears that a wide range of potential investigations into Trump, his family, or his companies could be shut down forever.

In response to Cornyn and Tillis’s objections to this settlement, Blanche tweeted out a brief order on Monday, stating that his own May 18 order establishing the anti-weaponization fund “is rescinded and shall have no force or effect.” According to Tillis, the DOJ also “acknowledged in a binding written order that the audit settlement is limited to the plaintiffs and the scope does not extend beyond the defendants in the lawsuit.”

So, Blanche walked back the specific order that he signed to establish the $1.8 billion slush fund, but he did not repudiate the part of the settlement that immunizes Trump, his two oldest sons, and the Trump Organization from many tax investigations. According to Tillis, the DOJ merely said that this part of the settlement does not apply to parties (including federal agencies) that were not parties to Trump’s original lawsuit.

Though this deal appeared to have been enough to secure Cornyn and Tillis’s votes, and most likely to ensure Blanche’s confirmation in a Republican Senate, it is unlikely to placate Democrats. As Sen. Adam Schiff (D-CA) tweeted Tuesday morning, Blanche’s new order “doesn’t prevent payouts to violent insurrectionists in the future,” and it “leaves in place a tax-immunity deal that could help Trump skip taxes on the $2.3 billion he made last year.”

And the question of whether the DOJ may bring politically motivated charges against figures like Baraka, Comey, or James appeared to not even be part of the deal struck between Blanche, Cornyn, and Tillis.

One reason why the two senators exacted such meager concessions may be because they didn’t have a very strong hand to play against Trump. Because Blanche is currently the Senate-confirmed deputy attorney general, he can remain head of the Justice Department, in an acting role, for as long as Trump is president. Indeed, when negotiations between Blanche and the two senators appeared to hit an impasse late last week, Trump threatened to “keep Todd as Acting A.G., and push hard to get the Anti-Weaponization Bill” if Cornyn and Tillis wouldn’t support Blanche.

But that doesn’t change the fact that Blanche’s concessions are thin gruel. His statement on the slush fund merely confirms that “there is no Fund” right now. And, under the terms of the apparent deal reached with Cornyn and Tillis, Trump, his sons, and his primary business still gain broad immunity from a wide range of tax investigations. 

So, while Cornyn and Tillis may have given Trump and Blanche a brief scare, they never put up much real resistance to Trump’s nominee.

Last June, in a case that effectively guaranteed one of Alabama’s Black Democratic members of Congress would be replaced by a white Republican, the Supreme Court used a single word that delighted movement conservatives and made many longtime civil rights advocates want to weep. 

In the first sentence of its decision in Allen v. Milligan (2026), most of the justices concluded that there is a tension between the federal Voting Rights Act (VRA), the landmark law that ended Jim Crow-era race discrimination in elections, and “our colorblind Constitution.” All three of the Court’s Democratic members dissented in Allen.

The word “colorblind” might not suggest, to many casual observers, the gravity of what the phrase means, how much power it has to roll back civil-rights reforms enacted in the 1960s — and the major ideological change ushered in by this Supreme Court. Proponents of colorblindness argue that any law that draws distinctions on the basis of race, for any reason whatsoever, is equally repugnant under the Constitution. Under this theory, laws like the Voting Rights Act and similar efforts to lift up historically disadvantaged racial groups are legally indistinguishable from the very kind of Jim Crow discrimination that the VRA sought to abolish. 

It’s an idea that cuts across the Roberts Court’s race decisions, including its decisions abolishing affirmative action in nearly all universities, its decisions undercutting public school integration, and its decisions dismantling the VRA. Under the colorblind thesis, the Constitution sees a modern law intended to guarantee some Black representation in Congress as precisely as intolerable as a 19th-century law forbidding Black people from voting at all. 

As Chief Justice John Roberts summarized colorblindness in a 2007 opinion, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

And lest there be any doubt, the Court’s commitment to this project extends far beyond a few pithy quotes. Just over one month before Allen, in Louisiana v. Callais (2026), the Court’s Republican majority imposed colorblindness on the laws governing US elections, effectively killing a 1982 amendment to the VRA — which was signed by President Ronald Reagan — in the process. Three years earlier, in Students for Fair Admissions v. Harvard (2023), the same justices implemented colorblindness in college and university admissions, ending affirmative action in nearly every institution of higher education in the country.

Allen’s reference to “our colorblind Constitution” confirms the breadth of this project, because if the colorblind thesis is imposed by the Constitution itself, that means that judges must strike down any law or government program that takes account of race, whether in hiring, federal contracting, university admissions, elections, or the military. (Though it is notable that the Harvard decision did dodge the question of whether service academies such as West Point may take account of race in admissions, after military leaders raised concerns that a racially diverse enlisted corps would resent being commanded by a corps of officers who do not resemble them.)

This shift in the Court’s approach to race cases is likely to lead to a purge of programs intended to benefit historically disadvantaged groups. Armed with precedents like Callais and Harvard, pro-colorblindness advocacy groups have filed a wide range of lawsuits challenging scholarships for minority youth, targeting groups that promote minority-owned businesses, and even trying to prevent universities from conducting surveys of Black students.

The GOP’s hard-right turn against laws like the Voting Rights Act is a recent development. Callais, after all, neutralized a law signed by Reagan, a Republican. An earlier Supreme Court case invalidating much of the VRA, Shelby County v. Holder (2013), struck down an extension of the VRA that was signed by Republican President George W. Bush. A significant faction within the GOP has fought against the VRA since the Nixon administration, but they repeatedly lost in the two elected branches of government and only prevailed after they captured an unelected judiciary.

But the victory of the “colorblind” theory in the conservative legal movement is also the result of decades of work. It is largely a story of how a once-fringe faction within the Republican Party took over both that party and then the Supreme Court. And, now that it controls the Court, that faction seeks to lock its approach to racial questions in place forever.

The pre-Roberts Court’s approach to race

Proponents of the colorblindness thesis often trace its origins to Justice John Marshall Harlan, the only dissenter in Plessy v. Ferguson (1896), the Supreme Court’s infamous decision permitting racial segregation. “Our Constitution is color-blind,” Harlan wrote in that dissent, “and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

Yet, while Harlan was a racial progressive by the standards of late 19th-century legal elites, his views would offend nearly all modern-day Americans. The full context of Harlan’s famous “color-blind” line suggests that he rejected segregation, at least in part, because he viewed it as unnecessary to maintain white supremacy. “The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power,” Harlan began the very same paragraph that includes the line about colorblindness. “So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”

The truth is that modern legal arguments regarding the Constitution’s racial equality provisions did not fully take shape until late in the 20th century. The Court’s landmark school desegregation decision in Brown v. Board of Education (1954) spoke only of a right to racially integrated public schools: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place.” After Brown, the Court handed down a series of unexplained orders affirming lower court decisions that struck down segregation at public beaches, municipal golf courses, parks and elsewhere. But many of these orders were just one sentence long, and they hardly answered the question of why segregation is unconstitutional outside of the public school context.

By the 1970s, legal scholars began to split between two competing theories of how the Constitution approaches race. The first theory, which Yale law professor Reva Siegel labels the “antisubordination” principle, contends that “it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups.” On this theory, Brown was correctly decided because the purpose of school segregation was to subordinate Black people, and the Constitution does not tolerate a racial underclass.

The other theory, which Siegel labels the “anticlassification” principle, simply declares that “government may not classify on the basis of race.” And thus any law that draws any distinction on the basis of race is constitutionally suspect, even if that law was enacted to undo the legacy of racism.

The Supreme Court of the 1970s and ’80s, however, did not divide into two neat camps. Every late 20th-century justice was at least a moderate proponent of Siegel’s anticlassification principle. While Justice Thurgood Marshall, for example, argued that the Constitution views laws which seek to “remed[y] the present effects of past racial discrimination” with less skepticism than it does laws that enforce white supremacy, he still would have subjected affirmative action and similar programs to “intermediate scrutiny,” which is the same test that courts apply to laws that discriminate against women.

Such laws are unconstitutional unless the government can provide an “exceedingly persuasive justification” for them.

Meanwhile, while a majority of the Court ultimately concluded that both Jim Crow-like laws and programs like affirmative action must survive the same exacting legal test — known as “strict scrutiny” — the Court also permitted at least some affirmative action programs to exist. The seminal case was Regents of the University of California v. Bakke (1978), which recognized that students from underrepresented racial groups bring “experiences, outlooks, and ideas” to the classroom “that enrich the training of its student body and better equip its graduates.”

And thus, if universities could not take some steps to racially diversify their student bodies, all of those students, including the white ones, would receive an inferior education.

The pre-Roberts Court, in other words, took a pragmatic approach to race cases that avoided drawing rigid lines or categorically declaring well-meaning programs intended to achieve racial equality off-limits. The justices of this era also understood that institutions outside of the Court often had far more expertise on how to foster a pluralistic society than nine lawyers in black robes.

Take Justice Lewis Powell’s opinion in Bakke, which said that “it is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation,” and which ultimately concluded that universities “must be accorded the right to select those students who will contribute the most to the ‘robust exchange of ideas.’” 

Powell was a white Southerner who, as chair of the Richmond, Virginia, school board, left office six years after Brown with only two of Richmond’s 23,000 Black children attending school alongside white students. But he was also humble enough to recognize that universities knew something about how to educate university students to succeed in a diverse nation that he and his fellow justices did not. And so he gave these universities some leeway to exercise that expertise.

Indeed, if anything, the current Court’s most defining feature is the complete absence of the very kind of humility that Powell showed in Bakke — especially on questions of race.

Writing colorblindness into the Constitution was one of Roberts’s top priorities as chief justice

John Roberts became chief justice of the United States in 2005. Less than two years later, he made his first big push to write colorblindness into the Constitution.

In a sharp break with earlier school segregation decisions, which concluded that public schools may require each school to have “a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole,” Roberts wrote that public schools are forbidden from voluntarily integrating themselves.

Parents Involved v. Seattle School District No. 1 (2007) involved two school districts, one in Seattle and another in Louisville, that allowed families to select which schools they wanted their children to attend. If more students chose a particular school than that school could accommodate, however, the districts gave a preference to children who would make their chosen school more diverse. The idea was that, since the districts had to come up with some way to determine who got to attend oversubscribed schools, it should do so in a way that fostered racial integration.

This was the case where Roberts declared that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Indeed, Roberts even wrote that these two districts’ attempt to integrate public schools was no less odious than Jim Crow segregation. “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” The school districts in Parents Involved, he claimed, asked his Court to “allow this once again — even for very different reasons.”

This is the essence of the colorblind theory of the Constitution. According to Roberts, the Constitution draws no distinction between white supremacist laws that segregate children by race, and an administrative scheme that tries to slightly increase the racial diversity of public schools.

It’s worth noting that Roberts’s views did not fully carry the day in Parents Involved, although a total of five justices agreed that the two school districts’ assignment schemes must be struck down. Justice Anthony Kennedy, who retired in 2018, wrote a separate opinion criticizing Roberts for going too far. “In the administration of public schools by the state and local authorities,” Kennedy concluded, “it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.”

But the Court’s overarching conclusion that racial integration can violate the Constitution still shocked the seniormost member of the Court. In dissent, Justice John Paul Stevens wrote that “it is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

A justice ready to take colorblindness from a fringe idea into the law of the land

Stevens, however, should not have been surprised that the new chief justice would reach such a conclusion, because Roberts had spent nearly his entire career fighting for the most absolutist version of the colorblindness thesis.

In 1982, President Reagan signed an amendment to the Voting Rights Act which clarified that state election laws that have a disproportionate negative impact on racial minorities violate the VRA, even if the plaintiffs cannot prove those laws were enacted with racist intent — this was the amendment that Roberts’s Court effectively repealed in its Callais decision. Reagan did so over the objections of a conservative faction within his administration, and one of the most vocal members of this faction was a young lawyer named John Roberts.

As a Reagan White House attorney, according to journalist Ari Berman, Roberts “wrote upwards of 25 memos opposing” the 1982 law. He “prepared administration officials for their testimony before the Senate; attended weekly strategy sessions; and worked closely with like-minded senators on Capitol Hill.”

Meanwhile, in an unrelated 1982 memo to Attorney General William French Smith regarding Smith’s upcoming meeting with the chair of the US Civil Rights Commission, Roberts urged Smith to “reiterate our commitment to the color-blind principle” in that meeting.

Though Roberts, and the conservative faction that he belonged to, lost the fight to get Reagan to veto the 1982 law, this movement was hardly a flash in the pan. The original Voting Rights Act of 1965 included a provision requiring states with a history of racist election practices to “preclear” any new election laws with federal officials to ensure that those laws would not prevent people of color from voting. This provision was initially set to expire in 1970, which meant that there was an internal fight within the Nixon administration over whether President Richard Nixon should sign an extension.

The conservative faction lost that fight too. They also lost similar fights over Voting Rights Act extensions in 1975, 1982, and 2006, all under Republican presidents. The 2006 extension, signed by President Bush, passed the House by a 390-33 margin, and it passed the Senate 98-0.

Ultimately, however, a conservative faction that was too weak to convince a single senator to oppose the 2006 extension had the last laugh. While this faction was only a minor player in Bush-era electoral politics, it dominated conservative legal groups like the Federalist Society and successfully pushed its own candidates for the Supreme Court. And so, in 2013, that Court struck down preclearance in Shelby County. Roberts wrote the opinion, which was joined by all of the Court’s Republicans.

The piecemeal death of the Voting Rights Act, in other words, wasn’t just the triumph of a once-impotent faction within the GOP over a voting rights law, it was a triumph over the democratic process itself. Time and time again, this faction lost its fight against the VRA in the two democratically elected branches of government. But none of that matters to a faction that controls the Supreme Court.

The colorblindness thesis is ahistorical

One irony of this fight over how the Constitution approaches race is that, while the most recent version of the Republican Party embraces colorblindness, it does so despite a lack of evidence that the Constitution’s racial equality provisions were originally understood to support this thesis. In Republican legal circles, it’s currently fashionable to tout originalism, the idea that the Constitution’s meaning was fixed at the time it was drafted or ratified, and that judges must interpret constitutional provisions in line with this original meaning. Several of the current justices, including Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, are outspoken originalists.

But within the Supreme Court it was Justice Thurgood Marshall, the great civil rights lawyer turned liberal justice, who first examined how the 14th Amendment, with its guarantee that no one will be denied the “equal protection of the laws,” was understood by the post-Civil War Americans who drafted and ratified it. And that evidence does not support colorblindness.

“The Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen’s Bureau Act, an Act that provided many of its benefits only to Negroes,” Marshall wrote in a separate opinion accompanying the Bakke decision. He also quoted members of Congress who complained during debates over this act that it gave Black people “favors that the poor white boy in the North cannot get,” as well as lawmakers who defended the “very discrimination” the Freedmen’s Bureau “makes between ‘destitute and suffering’ negroes and destitute and suffering white paupers.”

Seven years later, in 1985, legal scholar Eric Schnapper wrote a seminal paper fleshing out Marshall’s argument. Schnapper identified “eight Reconstruction measures establishing programs limited, in varying degrees, to blacks.” These laws included the Freedmen’s Bureau named by Marshall, as well as less significant laws offering targeted benefits to Black Americans. One law appropriated $15,000 “for the relief of freedmen or destitute colored people in the District of Columbia.” Another provided safeguards for Black veterans of the Union army.

For more than four decades, no justice even attempted to rebut Marshall and Schnapper’s originalist case for affirmative action. Indeed, the Court’s originalists were so silent that, in a 2013 article, conservative legal scholar Michael Rappaport complained that they have “not made any real effort to justify their affirmative action opinions based on the Constitution’s original meaning.”

Justice Thomas did finally attempt to rebut at least some of Marshall and Schnapper’s evidence in a concurring opinion in the Harvard case, but his response to the originalist case against colorblindness was quite feeble. Thomas’s opinion did “not contend that all of the individuals who put forth and ratified the Fourteenth Amendment universally believed” in colorblindness, and he claimed that the historical record is “sparse.” 

Regarding the Freedman’s Bureau, Thomas argued that the laws authorizing it “applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large,” even though “freedmen” is a category that consisted entirely of Black people. Regarding the other Reconstruction-era laws identified by Schnapper, Thomas discussed two of them.

Thomas acknowledged that “an 1866 law adopted special rules and procedures for the payment of ‘colored’ servicemen in the Union Army,” but anachronistically claimed that this law does not show that its 19th-century drafters rejected colorblindness because it may survive the strict scrutiny test that the Supreme Court devised during the 20th century. Thomas also conceded that “another law, passed in 1867, provided funds for ‘freedmen or destitute colored people’ in the District of Columbia,” but speculated that Congress “may have enacted the measure” — which again, used the words “colored people” — “not because of race, but rather to address a special problem in shantytowns in the District where blacks lived.”

All of which is a long way of saying that the colorblindness thesis is a far more recent invention than its most prominent proponents acknowledge. It was primarily devised, not by post-Civil War lawmakers seeking to undo the legacy of slavery, but by late 20th-century conservatives who opposed programs like affirmative action. 

If there was a serious originalist case for colorblindness, one of the justices would have made it in the 45-year period between Marshall’s opinion in Bakke and Thomas’s opinion in Harvard. And when Thomas finally did attempt to rebut the evidence gathered by Marshall and Schnapper, key prongs of his argument rested on anachronism and conjecture.

The fate of affirmative action and similar programs should be decided by elected officials, not by judges

In 2006, the people of Michigan voted to end affirmative action in that state’s university system. This ban sparked a far-fetched lawsuit claiming that it was somehow unconstitutional for the state to enact such a policy. As Judge Jeffrey Sutton wrote about this suit, the plaintiffs’ argument “transforms a potential virtue of affirmative action into a vice,” because “if there is one feature of affirmative-action programs that favors their constitutionality, it is that they grow out of the democratic process.” 

The question of what, if anything, should be done to racially diversify campuses — or to otherwise lift up communities that faced hundreds of years of enslavement, segregation, or other forms of government-sanctioned racism — is fraught. It is entirely reasonable to believe, as Chief Justice Roberts argued in Shelby County, that the same aggressive civil rights policies that were necessary to tear down Jim Crow in the 1960s are no longer needed two generations later. It is also reasonable to believe that, in a nation where the median white household earns over $36,000 more per year than the median Black household, that not enough is being done to close this gap.

Judge Sutton’s insight, in other words, should cut both ways. In a democracy, we are supposed to resolve these sorts of fraught questions through elections, not litigation. As the original history of the 14th Amendment shows, the United States did not ratify the post-Civil War constitutional amendments to prevent Harvard from diversifying its campus, and we certainly did not do so to prevent Congress from requiring former Confederate states to give some legislative representation to Black people. 

Similarly, proponents of colorblindness are more than capable of enacting their preferred policies without having to bypass democracy. Unlike the disenfranchised families who brought the Brown case, advocates of colorblindness do not need a judicial decree to advance their political goals — they can enact their preferred policies the same way that they did in Michigan’s 2006 election, by persuading voters that they are correct.

Nevertheless, by constitutionalizing colorblindness, the Republican justices have attempted to lock in place what could be, at most, a very transient electoral consensus around their preferred racial policy. If the American people decide, in the 2028 election or beyond, that the recent turn against laws like the Voting Rights Act was a terrible idea, they will have to replace the Supreme Court before they can reinstate those laws.

A court case involving President Donald Trump’s efforts to sabotage voting by mail reached the Supreme Court on Monday. The executive order at the heart of Trump v. California is one of many attempts by Trump and his Republican Party to make it harder for voters to mail their ballots and to potentially invalidate lawfully cast ballots that are submitted by mail. 

The executive order is particularly significant, because, with it, Trump is claiming the unilateral authority to change US election policy in ways that, at least according to the Constitution, can only be done by Congress or by state governments. Trump and many of his Republican allies have previously urged other institutions, such as Congress or the Supreme Court, to shift US election rules to benefit the GOP. But now, he’s claiming the power to rewrite those rules himself.

The March executive order at issue in California claims to be an effort to prevent noncitizens from voting in federal elections. But several provisions of the order seem designed to intimidate state and local election officials by threatening them with illegal prosecutions. Another provision would forbid the US Postal Service (USPS) from delivering many mailed ballots, which would have political benefits for Trump. 

Democrats have been more likely to vote by mail than Republicans since at least the Covid-era 2020 election, and this trend has continued post pandemic. So, any election policy that suppresses mailed ballots will harm Democrats and help Republicans.

In late June, a federal district court determined that several provisions of Trump’s executive order exceed his authority and must be struck down. 

The issue before the Supreme Court in California, however, does not concern whether the executive order is legal or not. Instead, Trump’s lawyers claim that the district court acted prematurely by invalidating the executive order before it was fully implemented and before several federal agencies have an opportunity to flesh out how its provisions will actually work. Those lawyers, in other words, want to buy time for federal agencies to implement parts of the order before it can be challenged in court.

This is actually a plausible argument, as Trump’s brief to the justices makes several significant concessions that, if embraced by the justices, would significantly weaken Trump’s order at least for the time being. As Trump’s lawyers now characterize his order, it doesn’t do much of anything until several federal agencies take additional steps.

Still, the stakes in this case, which arises on the Court’s “shadow docket,” a mix of emergency motions and other matters that the justices often decide very quickly, are quite high. Even if the justices do hold Trump to the promises his lawyers made in their brief and issue an opinion explicitly stating that the order currently imposes no obligations on anyone, that will still set up a future reckoning on whether Trump’s efforts to suppress voting by mail are valid. Eventually, those agencies will act, and several of them are likely to do so before the midterms, and, then, the question of whether Trump can fundamentally alter how US elections are conducted will have to be decided by the courts.

Trump’s executive order, if fully implemented, could potentially change the results of federal elections and place Republicans who did not win in office. It also matters because Trump claims the power to decide how states conduct federal elections, despite no statute that authorizes his order — thus, potentially expanding his own powers and the power of all future presidents.

So, what does Trump’s executive order do?

Trump v. California primarily concerns two sections of Trump’s executive order.

Section 2 of the order includes a thinly veiled threat that state and local election officials will face prosecution if they allow voters who aren’t pre-approved by the Trump administration to vote by mail. 

On the surface, the first part of this section seems innocuous. It requires the Department of Homeland Security “compile and transmit to the chief election official of each State a list of individuals confirmed to be United States citizens who will be above the age of 18 at the time of an upcoming Federal election and who maintain a residence in the subject State.” During a lower court proceeding in California, Trump’s Justice Department conceded that any such list would “necessarily be incomplete.” But the federal government’s decision to compile a partial list of eligible voters does not actually prevent anyone from voting.

The problem with Section 2 is that Trump’s call for DHS to compile this list is coupled with a statement that “the Attorney General shall prioritize the investigation and, as appropriate, the prosecution of State and local officials or any others involved in the administration of Federal elections who issue Federal ballots to individuals not eligible to vote in a Federal election.” 

Thus, as Judge Indira Talwani determined in her order blocking this provision, Section 2 “implicitly threatens enforcement…against election officials who furnish ballots to voters excluded” from the Trump administration’s incomplete lists. While the order does not explicitly state that an election official who mails a ballot to a lawful voter whose name does not appear on the Trump administration’s list will be prosecuted, Trump’s decision to couple his demand that the list be created with a threat of prosecution sends a clear message to election officials that they allow voters who are not on the list to vote at their own risk.

Moreover, as Talwani wrote in her opinion, one major reason why the federal government cannot compile an accurate list of all eligible voters is because the federal government’s records “do not necessarily track name changes (such as when a woman changes her name at marriage).” Women are more likely to vote for Democrats than men.

Additionally, Section 3 orders USPS to come up with new rules that require states to provide the federal government with a list of all voters who will receive a mailed ballot “no fewer than 60 days before the election,” and it forbids the post office from delivering ballots from voters whose names do not appear on the list. This section also outlines requirements for a specific kind of envelope for mail voting with certain design features — which, at the very least, creates a problem for states that have already purchased envelopes that do not comply with these new design requirements.

The Constitution gives states and Congress, not the president, the power to decide how federal elections are conducted

The Constitution provides that states, and not the federal government, get to decide who is eligible to vote in a federal election. Article I of the Constitution, for example, provides that voters who possess “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature” may vote for members of the US House. And the 17th Amendment uses similar language to describe who may vote for US senators.

Thus, because each state gets to determine who may vote in its state legislative races, states also have the power to determine who can vote for members of Congress.

The Constitution’s language governing presidential elections, meanwhile, is even more explicit that states — and not Trump — get to decide who is an eligible voter. That language provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” its presidential electors.

Thus, as Talwani concluded, no federal official, including the president, has the power to determine that only “United States citizens who will be above the age of 18” may vote in a particular federal election; only states have the authority to decide who may vote for members of Congress or the president. And the federal government certainly does not have the power to compile a list of eligible voters and threaten prosecution of any state official who provides a ballot to someone not on that list.

A separate provision of the Constitution lets states determine the “Times, Places and Manner of holding Elections for Senators and Representatives,” while also permitting Congress to “make or alter such Regulations.” Thus, while the federal government cannot determine who is eligible to vote in federal elections (except through constitutional provisions such as the 15th or 19th Amendments), Congress could conceivably pass a law regulating voting by mail.

But Trump is not Congress. And, according to Judge Talwani, “no law enacted by Congress delegates authority to control mail-in voting to USPS.”

Trump’s lawyers defend his executive order by claiming that it doesn’t do anything…yet

In their brief to the justices, Trump’s Justice Department did not actually argue that the executive order is legal (although they will likely do so in a later stage of this lawsuit). Instead, they argued that Judge Talwani’s decision blocking the executive order was “premature.” 

The thrust of DOJ’s argument is that, while the executive order announces several new election-related policies, it does not actually implement any of those policies. The executive order tasks DHS with compiling the incomplete list of eligible voters, it tasks DOJ with prosecuting state officials, and it tasks the Postal Service with coming up with the specific rules governing mailed ballots.

The Constitution does not permit anyone to file a lawsuit challenging a federal policy unless they can show they were injured in some way by that policy. Trump’s lawyers argue that, until the new election policies are fully implemented, none of the California plaintiffs can know whether they will be harmed by these policies or not.

It’s a plausible argument, but largely because DOJ’s brief makes a number of concessions that strip the executive order of any real vitality, at least until it is fully implemented by federal agencies.

The brief insisted, for example, that Section 2 should not be read to authorize prosecutions against state officials who send a ballot to someone who is not on Trump’s approved list of voters. “The Order does not deem it a crime, or even evidence of a crime, for States not to use the Lists when determining voter eligibility, and it does not direct the Attorney General to bring charges on such a theory,” it read.

Similarly, it denied that any of the executive order’s new policies governing envelopes and pre-approved voters who may vote by mail must actually be implemented, at least before the postal service issues its own rules regarding Trump’s new policies. According to the brief, “the Order does not ‘direct various changes to the voting-by-mail process,’” it merely “directs the President’s Executive Branch subordinates at the Postal Service to begin a deliberative policymaking process that may ultimately include some changes.”

While at least some of these concessions take liberties with the language of the executive order, they do potentially give the justices a third option to consider before they decide the California case. The justices could leave Talwani’s decision in full effect, or they could allow Trump to implement his new restrictions on voting. But they could also block Talwani’s order while simultaneously pointing to DOJ’s concessions and indicating that they expect Trump to honor those concessions.

If the justices take this third option, that would mean that the order would impose no obligations on the states for the time being and would similarly impose no new restrictions on voters until the agencies act. Litigation over the executive order would pause, and it would resume once the order is implemented by further agency action.

The Justice Department’s concessions in this case are fairly extraordinary, and they suggest that even Trump’s own legal team recognizes that it will be easier to persuade the courts to delay a reckoning over the executive order than it will be to convince them that the order is lawful. It remains to be seen, however, whether this Supreme Court will actually enforce the Constitution in this case — and whether they will do so right away or at some future date.

There was an unintentionally revealing moment in acting Attorney General Todd Blanche’s confirmation hearing last week. After Sen. John Kennedy (R-LA) asked Blanche whether he and President Donald Trump are friends, the leader of the United States Department of Justice replied, “I’m his lawyer,” before correcting himself and saying he “was his lawyer.”

Blanche previously defended Trump in three criminal cases brought while the president was out of office, but he is emphatically not supposed to be Trump’s lawyer right now. As acting attorney general — Blanche currently leads the DOJ because the attorney general’s job is vacant and Blanche is the Senate-confirmed deputy attorney general (DAG) — Blanche’s client is the United States, not the person who happens to occupy the White House. 

But it’s easy to see why he misspoke: Blanche has largely acted as Trump’s hammer since he was confirmed as the DOJ’s No. 2 official, overseeing numerous prosecutions of Trump’s perceived enemies. Now Trump wants to promote him to the DOJ’s top job — a sign of Trump’s confidence in his former criminal defense lawyer turned personal enforcer.

It’s unusual for a president to put his own defense lawyer in such a powerful position — indeed, it’s unusual for a president to have a criminal defense lawyer at all. But Trump has a long string of attorneys who’ve defended him and his companies against an equally long string of criminal allegations ranging from tax fraud, to falsifying business records, to illegally taking classified documents, to charges arising from his failed attempt to steal the 2020 presidential election. 

And he’s put at least five of those criminal defense lawyers in top federal jobs. 

Trump’s decision to turn much of his criminal legal team into powerful government officials matters for two big reasons. The first is that two members of that team, Blanche and Solicitor General John Sauer, are leaders within the Justice Department. Next to the military, there is no more fearsome government institution than the DOJ, which has the power to arrest people and try them for federal crimes. 

The DOJ is supposed to exercise this authority with restraint — and often with restraints imposed by the Constitution itself — but Blanche has used the Justice Department’s power against Trump’s political enemies who appear to have committed no crime and removed constraints on Trump and his Justice Department, all while Sauer has worked consistently to convince the Supreme Court to remove other constraints on Trump.

Meanwhile, three of Trump’s former criminal lawyers, Emil Bove, Justin Smith, and Matthew Schwartz, now have lifetime appointments as US Court of Appeals judges, placing them one rung on the judicial ladder down from the Supreme Court. The judiciary, of course, is the branch of government that is supposed to prevent the president from breaking the law, so every Trump loyalist appointed to this branch weakens the remaining legal constraints on Trump and his administration.

Trump, of course, isn’t the only president to place close confidants in the Justice Department or the federal bench. President John F. Kennedy famously named his brother attorney general. President Lyndon B. Johnson appointed Abe Fortas, who represented him in a 1948 election dispute, to the Supreme Court in 1965.

But Trump’s decision to place someone willing to pursue his personal vendettas in charge of the Justice Department is, at the very least, a break with post-Watergate norms established to prevent the DOJ from becoming a political weapon. And Fortas, who resigned in disgrace after fewer than four years on the bench, is more of a cautionary tale than a model of good governance.

Although the current Supreme Court is dominated by conservative Republicans, some of these justices do break with Trump on questions that divide the Republican Party — such as whether Trump should unilaterally impose high tariffs on many nations. But if Trump gets to turn his personal cronies into justices, that could change quickly. A judiciary controlled by MAGA loyalists means that all remaining checks on Trump’s authority could end. Many of his former-lawyers-turned-appointees are already working to make an unchecked Trump administration a reality.

How are Trump’s former personal lawyers already reshaping American legal norms?

Smith, who worked on the Trump v. United States immunity case, was confirmed last month. And Schwartz, who worked on the false documents case that led to Trump’s conviction, joined the bench last week. So there’s not much to say about these two men’s record in federal office — yet.

But Blanche, Bove, and Sauer have all displayed ruthless cunning in their efforts to advance Trump and his causes.

Blanche has been DAG since March 2025, a role that oversees the federal government’s criminal prosecutions and its 93 regional US attorneys’ offices. He’s led the entire Justice Department since April, after former Attorney General Pam Bondi — another of Trump’s former personal lawyers — left office.

So Blanche oversaw several dubious federal prosecutions targeting people Trump perceives as enemies, including criminal proceedings targeting former FBI Director James Comey and current New York Attorney General Letitia James. There’s also evidence that Blanche has played an unusually direct role in the Justice Department’s decision to bring meritless charges against prominent Democrats.

In May 2025, for example, Newark Mayor Ras Baraka, a Democrat, showed up at an ICE detention facility in his New Jersey city and asked to tour it. He was briefly let inside the gate, where he was confronted by about a dozen law enforcement officers and asked to leave, which he did.

But then one of these officers received a phone call. A video, later submitted to a federal court, shows the officer turning to his colleagues after the call and announcing, “We are arresting the mayor right now, per the deputy attorney general of the United States.” That deputy attorney general, of course, was Blanche. (In a September court filing, DOJ confirmed that officers arrested Baraka “after consulting with the Deputy Attorney General.”)

Yet, despite Blanche’s apparent decision to personally order Baraka’s arrest, the DAG forgot to check whether Baraka had actually done something that could support criminal charges. The mayor was only charged with misdemeanor trespassing, and those charges were dismissed two weeks later. At the court hearing formally dropping these charges, a federal magistrate judge admonished prosecutors for “using the immense power of the government to pursue weak cases or to make examples without sufficient cause.”

Blanche also unsuccessfully attempted to establish Trump’s $1.776 billion “anti-weaponization fund,” which would have been used to distribute money to Trump’s allies — including, potentially, Trump supporters who participated in the January 6 attack on the US Capitol. Although the fund appears dead after it received bipartisan pushback in Congress, a DOJ press release announcing the fund said it was “established” by the attorney general, a role performed by Blanche, and that the fund would be administered by five people chosen by Blanche.

Before Trump took office, Bove was Blanche’s law partner. Shortly before Bove joined the bench, he briefly served as principal associate deputy attorney general — essentially the DAG’s top deputy, which meant that Bove was Blanche’s right-hand man. In that role, he was often described as Trump’s “enforcer.” 

Bove spent only about half a year as Blanche’s lieutenant, but he managed to spark a mini-revolt in one of the Justice Department’s most prestigious offices during his short tenure. After Bove ordered the DOJ to dismiss corruption charges against then-New York City Mayor Eric Adams “without prejudice,” a maneuver that would allow the charges to be reinstated if Adams did not cooperate with the Trump administration’s immigration crackdown, seven federal prosecutors resigned rather than comply with Bove’s order. 

One was Danielle Sassoon, a former law clerk to Justice Antonin Scalia, a conservative icon. Another, Hagan Scotten, wrote in his resignation letter to Bove that “I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.” Scotten clerked for Republican Chief Justice John Roberts and for future Republican Justice Brett Kavanaugh.

Meanwhile, a whistleblower complaint by another former DOJ lawyer claims that Bove said, in a meeting about a court decision halting some deportations, “that D.O.J. would need to consider telling the courts ‘fuck you’ and ignore any such order.”

Trump appointed Bove to the US Court of Appeals for the Third Circuit last September. Federal appeals courts typically spend months deciding cases, so his tenure on the Third Circuit has thus far been less eventful than his time at the DOJ. But there are early signs that he remains loyal to Trump even after moving into an independent branch of government. Bove attended a Trump rally in December, a highly unusual move for judges who are supposed to remain nonpartisan. And the background image on his iPhone is reportedly an image of a defiant Trump raising a fist, or at least it was months after he joined the bench.

That leaves Sauer, who, as solicitor general, is tasked with defending federal government programs in the Supreme Court. That includes the Trump tariffs that the Supreme Court struck down last winter, and Trump’s unconstitutional attempt to strip many newborn Americans of their citizenship.

Despite these losses, Sauer has an impressive winning record before the Supreme Court, largely because the Court is controlled by six Republicans who are highly sympathetic to Trump and his agenda. This is, after all, the same Court that said that Trump may use the powers of the presidency to commit crimes, after Sauer argued as much. 

Sauer has been particularly effective in persuading the Republican justices to block lower court rulings against Trump on the Court’s “shadow docket,” a once rarely used mix of emergency motions and other matters that became a routine part of Supreme Court litigation during Trump’s first term.

So Trump has taken several of his personal lawyers and transformed them into some of the most well-credentialed — and in some cases, the most powerful — figures in the legal profession. Thus far, the evidence suggests that these individuals remain loyal to Trump, even when they move into jobs that are supposed to be nonpartisan. Three of them already have lifetime appointments. 

Any nation governed by the rule of law must have government officials who will obey whatever constraints the law imposes — whether they be federal agency leaders who follow the law out of a sense of duty, or judges who rein in executive branch leaders who refuse to do so. Institutions like the Department of Justice also depend on informal norms, many of which are a response to similar abuses of power during the Nixon administration, that have long constrained federal prosecutors.

But Trump’s DOJ is often actively hostile to these norms, and the growing legal power of Trump’s personal lawyers is just the latest example. Their steady reshaping of the judiciary clears the way for a federal government that is not constrained by anything.