The Courts in Crisis: Mark Joseph Stern on the Supreme Court, Trump, and the Future of the Rule of Law
JUDJ-Prepared Summary from November 19, 2025 | Courts in the Crosshairs: What’s Next for Justice in America. The views and opinions expressed in this blog are those of the speaker.
In a recent America at a Crossroads discussion, Slate senior writer and legal analyst Mark Joseph Stern explored how the federal courts—and especially the U.S. Supreme Court—are reshaping American democracy. Drawing on his years covering the judiciary from a progressive perspective, Stern examined the Court’s rightward shift, its alignment with former President Donald Trump’s agenda, and what these changes mean for the rule of law and the balance of power among the branches of government.
A New Supreme Court: From Swing Votes to a Conservative Supermajority
Stern began by contrasting the current Court with the era when Justice Anthony Kennedy sat at its center. While Kennedy was conservative, he sometimes broke from the right on key liberty issues, backing decisions such as Obergefell v. Hodges on marriage equality and Whole Woman’s Health v. Hellerstedt upholding abortion rights protections.
“That kind of ruling just doesn’t come from this Supreme Court anymore,” Stern argued. Instead, a solid conservative supermajority now frequently sides with Republican policy priorities, especially when they expand executive power. During Trump’s presidency, he noted, the Court often declined to stand up to Trump in the way it has been willing to block major initiatives of President Joe Biden.
Separation of Powers Under Strain
A central concern for Stern is the erosion of traditional checks and balances. He pointed to the Constitution’s clear allocation of the “power of the purse” to Congress, not the president, and reminded viewers this is “eighth-grade civics” material.
Yet, he explained, the current Court has allowed Trump to refuse to spend money that Congress explicitly appropriated and to effectively veto billions of dollars in funding by not carrying out appropriations as directed. Many of the same justices once wrote about the importance of preventing the president from seizing control over federal spending.
“That feels to me like these justices saying, ‘We kind of want to make Trump a king,’” Stern said, arguing that the Court’s recent decisions are hard to square with its own earlier principles.
The Major Questions Doctrine and the Tariffs Fight
Stern then turned to Trump’s aggressive use of emergency powers to impose broad tariffs, and how that intersects with the Court’s “major questions” doctrine. The Court used that doctrine to strike down several Biden policies, from the eviction moratorium to student loan forgiveness, insisting that presidents cannot use vague statutes to enact sweeping policies without clear congressional authorization.
In the tariffs case, Trump’s lawyers read a 1977 emergency powers law to give the president virtually unlimited authority over tariffs. Stern noted that if Congress had truly meant to hand over such sweeping power, the statute would say so plainly—especially since the Constitution assigns taxes and tariffs to Congress.
Ironically, Stern suggested the Court may strike down Trump’s tariffs, not as a broader check on his power, but as a way to distance itself from one unpopular policy while still empowering him elsewhere—and even to “save Trump from his worst instincts” on the economy.
Shadow Docket, Identity Rights, and Judicial Legitimacy
Another theme was the Supreme Court’s growing reliance on the “shadow docket”—unsigned, fast-tracked orders issued without full briefing or oral argument. Stern called attention to the Court’s use of this tool to greenlight Trump’s rollback of longstanding passport policies that allowed transgender people to update gender markers and offered an “X” option for non-binary and intersex individuals.
He criticized the majority for ignoring evidence of harm to trans and non-binary people and for allowing a major policy shift to occur in the shadows, without the deliberation that usually legitimizes the Court’s work.
Why Lower Courts Still Matter
Despite his deep concerns, Stern closed on a note of cautious optimism. He highlighted district and appellate court judges across the country who continue to uphold the rule of law, often in the face of death threats and intense political pressure.
“We are not past the point of no return,” he emphasized. Many judges are still doing their jobs as the Constitution envisions—serving as independent checks on executive power. Stern urged citizens to support those judges, and to speak out clearly when others, including Supreme Court justices, appear to surrender their independence to politics.
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.