How the Democrats need to go about fighting a rogue reactionary Supreme Court

Dahlia Lithwick and Mark Joseph Stern warned in November 2024 that the outrageous Roberts Court decision basically exempted the President from the requirement to follow the law in its Trump v. United States decision of 2024. And that it would allow the Trumpists to put the pedal to the metal on its authoritarian project to destroy American democracy, which they accurately described as follows:

[O]n arguably the big issue, what presidential power actually means, Trump couldn’t be clearer: He believes the president is an elected authoritarian who can and indeed should concentrate all state power within himself and wield it to achieve his own personal ambitions and retributions. There is no daylight between his own selfish interests and the state’s needs, because to his mind, he is the state. And he is forever immune from punishment when he chooses to corruptly manipulate the tools of his office to punish his enemies and reward his friends. He is the state, but he is also the law. [my emphasis] (1)

The Democrats have to be aggressive on restoring the rule of law, which of course is intimately connected to the massive corruption of the current regime that the Democrats have to push back against aggressively, now and for the years after Trump is out of power.

David Sirota wrote in 2022 about one of the worst historical “lessons” that came out of Franklin Roosvelt’s successful fight against the blatantly partisan, anti-New Deal Supreme Court, which is often referred to as Roosevelt’s “court-packing” scheme and is commonly cited as a failure on FDR’s part, which is almost the opposite of true:

Public support for Roosevelt’s expansion initiative only truly cratered when the court’s conservative majority suddenly halted its attempts to block the New Deal. In particular, the court’s surprising decisions to uphold a state minimum wage and then the pro-union Wagner Act deflated public support for court expansion, as did the subsequent retirement of one of the court’s most conservative justices. The court soon after declined to block Social Security.

“Evidence accumulated over the years goes against that notion of the (close) relationship between the public and the court,” wrote Caldiera. “I prefer, instead, a much more straightforward account: The Supreme Court outmaneuvered the president. Through a series of shrewd moves, the court put President Roosevelt in the position of arguing for a radical reform on the slimmest of justifications.”

But here’s the key point: He notes that the court’s “shrewd moves” that “outmaneuvered” FDR were in practice “an important jurisprudential retreat” on policy.

“President Roosevelt in essence offered the Supreme Court a choice between substantive policy and structural integrity,” he concludes. “The court wisely chose to give up on the substantive issues and preserve its structural integrity.” (2)

Norm Ornstein and David Rothkopf recently held a very informative discussion about what will be required of the Democrats on both policy and politics to undo the massive damage John Roberts and Donald Trump have done to the basic functioning of the legal system in the US, with the title “The One and Only Way to Truly Defeat the Trump Crime Family”: (3)

Notes:

(1) Lithwick, Dahlia and Stern, Mark Joseph (2024): The One Reason a Second Trump Presidency Would Be So Much Worse. Slate 11/04/2024. <https://slate.com/news-and-politics/2024/11/2016-election-supreme-court-helps-trump.html> (Accessed: 2026-31-05).

(2) Sirota, David (2022): FDR’s Lesson About The Supreme Court Rampage. The Lever 07/08/2022. <https://www.levernews.com/fdrs-lesson-about-the-supreme-court-rampage/> (Accessed: 2026-31-05).

(3) The One and Only Way to Truly Defeat the Trump Crime Family. The DSR Network YouTube channel. <https://youtu.be/ViLgo5ivXCw?si=WFtya2Bv6za-l65-> (Accessed: 2026-31-05).