The Supreme Court's (Self-Defeating) Supremacy
The Supreme Court's (Self-Defeating) Supremacy
Journal: The Supreme Court Review (SCR), which is an in-depth annual critique of the Supreme Court and its work, keeping up on the forefront of the origins, reforms, and interpretations of American law. SCR is written by and for legal academics, judges, political scientists, journalists, historians, economists, policy planners, and sociologists. More on SCR can be found here.
Date of Publication: Written - October 25, 2025; Posted - October 27, 2025; Last revised - January 4, 2026
Author: Stephen I. Vladeck. Vladeck is the Agnes Williams Sesquicentennial Professor of Federal Courts at the Georgetown University Law Center. More on Vladeck can be found here and here.
The article can be downloaded from here, and a PDF of the article can be found here.
Abstract: This essay, prepared for the 2025 volume of The Supreme Court Review, seeks to provide a holistic account of the U.S. Supreme Court’s behavior on emergency applications relating to the Trump administration during its October 2024 Term.
As it demonstrates, the justices in those cases not only flouted the traditional standards for emergency relief; they exhibited repeated and sustained disrespect for both lower courts and Congress, enabling the executive branch to act in defiance of countless statutory restrictions; of settled constitutional understandings; and even of coercive district court mandates, all with dramatic (and deleterious) real-world consequences. As the Alien Enemies Act cases illustrate, the takeaway is not that the Court always ruled for President Trump; it's that it pushed back only when its mandates were on the line. The upshot is an attempt by the Supreme Court to preserve its supremacy, as such.
But such an approach, the essay concludes, is likely to be self-defeating. In the short term, it will encourage the executive branch to take ever-more-aggressive actions against both the people and the lower courts. And in the long term, it will not just further weaken Congress and the lower courts; it will further erode public confidence in the judiciary as an institution. Together, the increased power and momentum of the executive and the decreased credibility of (and respect for) the courts will make it that much harder for the Supreme Court to wield the supremacy it's protecting, even when it wants to.
Why We Are Recommending This Article:
In this provocative piece, Stephen Vladeck argues that a defining feature of the Roberts Court’s emergency docket jurisprudence has been an effort to preserve and reinforce the Supreme Court’s institutional supremacy. Examining a series of emergency applications involving the Trump administration, he contends that the Court has increasingly positioned itself as the ultimate arbiter of constitutional meaning and the practical limits of executive and legislative authority, often at the expense of lower courts and Congress. For ISSE, the article raises a broader question: whether exceptional authority can become concentrated within judicial institutions as well as executive ones. The essay ultimately invites readers to consider how the normalization of extraordinary authority across multiple branches of government may affect democratic accountability, institutional legitimacy, and the constitutional balance of power.
