The Supreme Court last week allowed Donald Trump’s ballroom construction to proceed, brushing past the historic-preservation concerns that had been litigated for months. The court on Monday allowed the president’s mail-in voting order to continue. This follows a string of rulings greenlighting the Trump administration’s immigration enforcement, personnel firings, DEI and transgender orders, and dozens of other executive actions.
How long is the public meant to treat the legal establishment’s hand-wringing as principled, rather than as part of a campaign to insulate the administration and the courts from any accountability?
The state of conservative legal commentary has reached peak national embarrassment, a master class in spin that rivals the post hoc defenses of executive overreach and the endless hand-wringing over presidential restraint. The legal establishment’s enabler campaign began in the earliest days of the first Trump term and has become only more brazen. The defeats and the rationalizations are there for all to see, every week. Yet the formula is now so routine that nobody in the conservative legal world pushes back.
It works like this: The administration takes an action that offends constitutional norms. Citizens and interest groups rush to litigate, sometimes with prepackaged lawsuits of obvious merit. The legal commentariat quotes administration lawyers and the litigators’ critics as to why the suits are weak. A loyalist judge refuses to enjoin, which is treated as further proof of the suit’s weakness. The commentaries omit any critical analysis of the administration’s own legal theories, its serial violations of court orders, or its disregard for settled precedent. When a higher court corrects the executive overreach, the legal commentariat, rather than acknowledge the constitutional problem, insists the judges are overstepping into policy.
Consider that ballroom case. When the National Trust for Historic Preservation filed a lawsuit last December to halt the project, the press corps pushed the litigation as a slam dunk. The stories led with a quote from the suit, presenting as fact that “no president is legally allowed to tear down portions of the White House without any review whatsoever.” The pieces cataloged the laws the administration had supposedly violated, and the claim that any building required the “express authority of Congress.” Critics hailed the early August ruling by the U.S. Court of Appeals for the District of Columbia Circuit to halt the project as evidence of the trust’s legal firepower.
Chief Justice John Roberts’s order last Friday staying that injunction wasn’t accompanied by an opinion and isn’t a ruling on the merits. But any reporter with a half-sharp pencil might have noted the obvious problems with the Roberts intervention. These were nimbly outlined by Judge Neomi Rao, who dissented from the D.C. Circuit’s injunction. She argues the trust has no standing to bring the suit: It wasn’t chartered to look after the White House, and its one member who occasionally walks past the complex and expects to dislike the new structure, can hardly claim a concrete “injury.” Judge Rao also makes the case on the merits that the trust’s ultra vires claim is “essentially a Hail Mary pass,” since at least one federal law authorizes the president to use funds for the “care, maintenance, repair, alteration” and “improvement” of the executive residence. Those arguments are unconvincing — the trust’s case rests on ordinary standing principles and a plain reading of statutes that limit presidential authority over the executive residence. The lower court read those limits the right way; the chief justice undid them in a single unsigned order.
The courts will decide the merits. But it’s outrageous that the country’s top legal reporters have to drag the Roberts court’s procedural maneuvering into the light — and ludicrous that the country’s most powerful legal voices are racing to defend a president tearing up the White House for a vanity project, providing the public not even a whisper of the constitutional questions at stake. It’s much more fun, as numerous commentaries about last week’s order did, to suggest that the chief justice is simply following the law.
This is the cynical game — rigged commentary to insulate the administration and to set false expectations, the better to protect executive overreach. How relentlessly were we told Mr. Trump’s 2017 “travel ban” would never stand — until the Supreme Court eventually ratified it? That there was no such thing as presidential immunity — until the court invented it? That of course a president can’t fire independent-agency heads — until the court said he could? That the administration’s firings, and DEI rules, and immigration actions all offended the law — until the court signed off on them?
How do we know this defense is coordinated? The legal commentariat is quite capable of providing sharp analysis about cases the president is actually poised to lose, as with his emergency tariffs and his executive order on birthright citizenship. It would be easy to call any separation-of-powers hawk to get a read on the executive’s own overreach. It doesn’t happen.
Don’t expect it to end, since the tactic continues to work for this White House. The stays — and the cheering commentary — keep the MAGA base motivated. The flood of executive overreach — and the credulous defenses — maintains the narrative that the president is daily defeating his legal enemies. And the purposeful presentation of Supreme Court interventions as political or activist — rather than as straightforward constitutional correctives — gives ammunition to administration officials making the argument that they are justified in ignoring the judiciary to achieve partisan objectives.
The real scandal is the legal establishment’s role. No one is surprised to see elected officials or political partisans engaged in partisan tactics, which now includes cheerleading for executive lawlessness. But this particular ruse doesn’t work without the legal commentariat’s cooperation — its willingness to suspend analysis, omit key facts, and pretend higher courts are acting out of bounds. It’s doing terrible damage to the rule of law. Where are the conservative legal scholars when you need them?