The Australian legal landscape is abuzz as the nation’s highest court braces for a period of intense scrutiny, dubbed “Opinionpalooza” by observers. This final stretch of the judicial term is shaping up to be a defining moment, not only for the court’s legacy but potentially for the political trajectory of former President Donald Trump’s influence. Legal analysts are dissecting the court’s recent actions, suggesting that a prevailing narrative of Chief Justice John Roberts acting as a stoic bulwark against executive overreach may be significantly overstated.
Instead, the argument gaining traction is that the court’s conservative majority has, through both public judgments and less transparent “shadow docket” decisions, consistently amplified presidential authority. This, critics contend, has emboldened figures like Trump while simultaneously eroding the court’s own standing and perceived impartiality.
The “MAGA Wing” and Executive Ambition
Legal commentator Mark Joseph Stern, speaking on a prominent podcast, highlighted a concerning alignment: “where the ambitions of the MAGA wing of the court dovetail with Trump’s goals, Trumpism will run the table.” This sentiment points to a perceived synergy between certain judicial ideologies and specific political objectives, leading to outcomes that favour expansive executive power.
The fear is palpable that if the Supreme Court fails to implement checks on such power, it may lead to future regrets. Dahlia Lithwick, a fellow legal analyst, elaborated on this point, stating that “The Supreme Court keeps aligning with Donald Trump on this maximalist view of the imperial presidency, both in front of the curtain and behind it.”
This dual approach is particularly troubling. For every high-profile case that grants Trump a public victory, there appear to be numerous “shadow docket” decisions that achieve similar ends with far less public fanfare. Lithwick described this as a carefully orchestrated performance: “It feels like any appearance of conflict between the president and the court is stage-managed, with lots of invisible wires we don’t always pay attention to.”
The “Shadow Docket” and Undermining Transparency
One of the most significant criticisms centres on the court’s use of the “shadow docket.” This refers to the court’s practice of issuing orders on emergency appeals without full briefing or oral argument, often with little explanation. Stern expressed frustration, arguing that this practice allows the court to bypass public scrutiny: “The conservative supermajority issued all these shadow docket orders clearing the way for that to happen.”
The impact of these decisions is seen as substantial. Stern believes that Trump’s “takeover of the federal government is largely complete,” and that the extensive use of the shadow docket during a “shock-and-awe campaign” has already achieved its objectives. He suggests that the court may no longer feel the same urgency to issue such orders, having already secured significant gains.
A Pattern of Empowering Executive Action
Stern’s analysis suggests a deep-seated cynicism about the court’s motivations. He posits that the court’s actions are less about learning lessons or respecting lower courts, and more about achieving pre-determined outcomes. “It’s less that the court has learned its lesson or become more solicitous toward lower court judges, and more that the court already accomplished a huge amount of what it wanted in terms of giving Trump what he sought.”
Trump’s presidency was marked by an expansive vision of executive authority, encompassing actions such as impounding federal funds, dismissing executive officials, and unilaterally altering immigration laws. According to Stern, “And by and large, the Supreme Court let him do it.”
Chief Justice Roberts: Restraint or Strategic Advance?
The role of Chief Justice John Roberts has been a particular point of contention. The idea that he acts as an independent force, restraining the more ardent conservative members, is being challenged. Lithwick suggests a more nuanced, and perhaps more strategic, approach: “Roberts tends to make small moves at first until people are used to things, and then ‘it’s less of a surprise and almost looks like it flows logically from when the court did it in a lesser way.’” This gradualist approach, critics argue, allows for significant policy shifts to be normalised over time.
Rather than simply acting as a neutral arbiter, Roberts is portrayed by some as a figure actively pursuing a long-term agenda to reshape American politics from the bench. The urgency of his recent actions, some suggest, may stem from a recognition of a limited window of opportunity to solidify these changes.
The Court’s Own Power and Future Authority
The court’s actions, Lithwick argues, do more than just affirm maximalist views of executive power for presidents; they also reinforce the court’s own expansive authority to be the ultimate decider. This raises a critical question: “Does that put the lie to the whole story everyone wants to tell about John Roberts versus Donald Trump?”
Furthermore, by consistently granting Trump’s requests, often at breakneck speed via the shadow docket, the court may be undermining its own future capacity to refuse important requests. Lithwick poses a stark question: “does the court in fact embolden him in a way that imperils its own ability to someday say no to an important question in the future, because it’s squandering whatever authority it actually has to say no?”
The Ultimate Test: Defiance and Consequences
The real test of the court’s authority, and the potential breaking point in this intricate relationship, lies in a future scenario where the Supreme Court issues a definitive ruling, and a president like Trump chooses to disregard it. While Stern notes that Trump has historically complied with Supreme Court rulings, he is known to defy lower courts. The question that looms is what will happen when Trump decides that his compliance with the highest court is no longer in his interest. This potential confrontation could have profound implications for the balance of power and the rule of law in Australia.
