Tragically, This Is The Third Era In U.S. History With An Avowedly Anti-American Supreme Court

When The Courts Fail, Democracy Falls

It may be hard for you to imagine a worse Supreme Court than the one McConnell and Trump gave us today. There were a couple of really bad periods though, as bad as the Roberts Court. The Taney Court (1836-1864) was pretty gruesome. While not uniformly “right-wing” in the way we understand that term today, it will be remembered for one of the 3 or 4 worst decisions ever handed down— Dred Scott v. Sandford (1857) which reflects the ugliest kind of ultra-conservative bent in American history. The 7-2 ruling, with a Southern-leaning majority, denied citizenship to African Americans and upheld slavery’s expansion, aligning with “states’ rights” and property interests over human rights— a position that was radical for its time and catastrophic in its impact. Taney himself goes down as the worst chief justice of the Supreme Court and the court pushed the country towards the Civil War.

Another putrid period of extreme right dominance comparable to today’s court was the Lochner Era (roughly 1897–1937), named after Lochner v. New York (1905). During this time, the Court consistently struck down progressive economic regulations, like labor laws setting maximum hours or minimum wages, viewing them as infringements on “freedom of contract.” Justices like David Josiah Brewer and Rufus Peckham led a majority that prioritized property rights and laissez-faire economics over government intervention. For example, in Lochner, the Court invalidated a New York law capping bakery work hours at 60 per week, arguing it violated employers’ and workers’ rights. This era saw the Court invalidate over 200 state and federal laws, a level of judicial activism that frustrated progressives and aligned with what we’d now call an extreme right-wing agenda. By the 1930s, under Chief Justice William Howard Taft and later Charles Evans Hughes, the Court’s resistance to New Deal legislation— striking down key parts of Franklin Roosevelt’s recovery plan— prompted FDR’s infamous court-packing threat in 1937. The switch by Justice Owen Roberts to uphold a minimum wage law that year (West Coast Hotel v. Parrish) marked the end of this extreme conservative stance, but for decades prior, the Court was a bulwark against economic regulation in a way that rivals today’s perceived extremism. 

In the midst of the Lochner Era— and very much part of it— was the Taft Court (1921–1930), almost fascist in scope. Taft, a former president, led a Court that favored business interests against working families and did all it could to limit federal power. Cases like Adkins v. Children’s Hospital (1923) struck down a minimum wage law for women while Bailey v. Drexel Furniture Co. (1922), struck down a federal child labor tax… so very much part of the Lochner Era’s hostility to regulation protecting the public from elite predators. With justices like Willis Van Devanter and George Sutherland, this Court consistently ruled against labor and progressive reforms, reflecting a right-wing ideology that dominated until the Great Depression shifted public and judicial sentiment.

The Court has shifted again towards another Lochner or Taney era— which will soon be put to the test with John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett having to decide if their loyalty is to America and Americans or to the MAGA movement— as Naziism is called today— that put them in power. They’ve already overturned Roe v. Wade (Dobbs v. Jackson Women’s Health, 2022), expanded gun rights (New York State Rifle & Pistol Association v. Bruen, 2022), and curbed agency power (Loper Bright Enterprises v. Raimondo, 2024). Data from the Martin-Quinn scores, which measure justices’ ideologies based on voting patterns, show the current Court as the furthest right since at least the 1930s, with justices like Alito and Thomas scoring full-fledged, unadulterated, anti-American, pro-Nazi. 

Trump, Musk, Vance, the Project 2025 authors and the MAGA movement are intent on a showdown with the judicial system and the Supreme Court members who are not named Clarence Thomas or Sam Alito will soon be deciding where they will place themselves in American history. Yesterday, Kyle Cheney, Megan Messerly and Josh Gerstein reported that Señor Trumpanzyy “is trying to show the world what he wants it to see: a president wielding unlimited and uncheckable power. Trump’s challenge to the authority of Congress and the courts has increased in velocity and intensity in recent days. It reached a crescendo this weekend, when Trump invoked wartime powers to summarily deport Venezuelan nationals he deems to be terrorists, and his White House amplified a foreign strongman’s mockery of the judge who tried to pause the deportations. That skirmish was only the latest in an increasingly ominous confrontation between Trump’s White House and the other two constitutional branches. In short, the most significant test of America’s system of checks and balances in Trump’s second term has arrived. And the outcome is less certain than ever.”

This latest collision between Trump and the judicial branch— in which the White House and its allies are openly assailing the judge weighing the validity of Trump’s orders— is a more intense version of the clashes that have stymied his administration since Inauguration Day. Judges have sought to slow or stop some of Trump and Elon Musk’s efforts to overhaul the federal bureaucracy and workforce, saying they have run afoul of Congress’ spending authority and laws governing hiring and firing of federal workers.

Judges have also in recent weeks blocked Trump’s effort to limit the Constitution’s guarantee of birthright citizenship for the children of some immigrants; his efforts to strip federal funding from medical institutions that provide care for transgender youth; his attempt to fire members of the federal boards that handle workplace grievances and labor disputes; his attempt to freeze refugee admissions; and his effort to strip funding from institutions that his administration says participate in impermissible “DEI” practices.

… [T]he administration’s legal tangles underscore its make-decisions-first, figure-out-a-legal-defense-later approach to policy making. And the frustration over the rulings highlights how sensitive the White House is about efforts to thwart its agenda after they spent four years during Trump’s first term battling not just Democrats but the courts, Congress and even some within the administration to implement their policy proposals. Now, this administration is primed to see any pushback as illegitimate.

Each order has led to a wave of fury among Trump’s Cabinet loyalists, supporters in Congress and the always-online MAGA faithful. On Monday, Trump labeled as “dangerous” a judge’s order requiring his administration to reinstate thousands of fired federal workers over a ruling that the administration broke the law by failing to give state governments enough notice about the mass terminations.

… [I]t was the fight over Trump’s invocation of the Alien Enemies Act— the 1798 law granting the president power to deport nationals of a wartime enemy nation— that seemed to push the conflict closest to a crisis.

On Saturday evening, U.S. District Judge James Boasberg issued an emergency order to pause those deportations, raising questions about Trump’s authority to order them in the first place. But Trump sent plane loads of Venezuelans out of the country anyway, delivering them to El Salvador, whose strongman president Nayib Bukele openly mocked the judge’s effort to intervene in the matter.

“Oopsie, too late,” Bukele posted on Twitter.

The White House and Trump’s supporters quickly cheered Bukele on, and Attorney General Pam Bondi accused the judge, an appointee of President Barack Obama, of supporting terrorists over Americans. By Sunday, Trump’s uber-adviser and megadonor, Musk, had revived his call for Congress to impeach judges who rule against Trump and his claim that the left had “captured” the judiciary.

“We’re not stopping. I don’t care what the judges think. I don’t care what the left thinks. We’re coming,” said Thomas Homan, Trump’s border czar, in a Monday appearance on Fox News.

On Monday afternoon, the Justice Department urged Bioasberg to call off his scrutiny of Trump’s decision to label some Venezuelan migrants as terrorists in order to “de-escalate the grave incursions on Executive Branch authority that have already arisen.”

When Boasberg refused to cancel a Monday afternoon hearing, DOJ asked a federal appellate court to remove him  from the case altogether, an extraordinary step to circumvent judicial scrutiny.

… Perhaps most significantly: The administration firmly believes that it has popular opinion on its side, at least in the fight over deportations of alleged gang members. An analysis from Gallup of six recent polls found that support for deportations reaches high majority levels when voters are asked specifically about deporting people with criminal records, while support for deporting people whose only crime was entering the country illegally is more mixed.

And the Hollywood-style video the El Salvadoran president released— and Trump approvingly republished on his Truth Social account— conveys a get-tough approach to potentially-threatening migrants that could resonate with some Americans. That’s probably the case even as immigrant rights advocates warn the administration has provided little insight into how it determined that those sent to El Salvador under Trump’s declaration, seen being forcibly shaved and restrained in the video, were members of Tren de Aragua.

What we’re witnessing is not just another clash between the branches of government but a full-scale assault on the very foundation of constitutional democracy. Trump and his enablers— whether in the Thomas-Alito segment of the Supreme Court, Congress, or Silicon Valley— aren’t interested in legal reasoning or historical precedent. They are laying the groundwork for an authoritarian regime where judicial rulings exist only to be ignored, checks and balances are seen as inconveniences and brute force dictates policy. This is the culmination of a decades-long right-wing project to dismantle democratic institutions and replace them with a system that serves only the wealthy, the cruel and the fanatical.

There is no moderate path forward. Either the judiciary asserts itself against Trump’s lawlessness, or it becomes his willing accomplice. Justices like Roberts, Gorsuch, Barrett, and Kavanaugh— who may fancy themselves institutionalists— will soon have to decide whether they will be remembered as the last defenders of an independent court or as footnotes in America’s descent into autocracy. The moment of reckoning is here, and history will not be kind to those who choose cowardice over courage.