Has SCOTUS Become a Republican Tool to Move Us Into Dictatorship?

Justice Brett Kavanaugh, left, and Chief Justice John Roberts listen as President Donald Trump speaks during his second inaugural. Chip Somodevilla/Getty Images

The Supreme Court has granted presidents criminal immunity, dismantled federal agency constraints, and weakened electoral oversight. Together, these rulings concentrate executive authority beyond anything Nixon, Reagan, or Bush possessed.

The 6-3 conservative majority has removed three categories of checks. Criminal accountability for presidents. Independent agency power to constrain executive action. Robust judicial review of electoral manipulation. Every major decision since 2020 has either expanded direct presidential control or eliminated institutional barriers to executive power. All split 6-3 along ideological lines.

The question is whether these powers will be abused. Donald Trump attempted to overturn the 2020 election through pressure campaigns on state officials and schemes to submit false electoral certificates. He was indicted on federal and state charges. Both prosecutions collapsed after his 2024 election victory. He publicly stated he would be a dictator “on day one” to close the border and expand drilling. He maintains 78-87% approval among Republican voters. Senate Republicans refused to convict him in two impeachment trials despite evidence of abuse of power and incitement of insurrection. Would Trump kill political rivals if he could get away with it? Would he steal elections by any means available? Would congressional Republicans hold him accountable? The legal architecture the Court has built answers these questions with permissions, not prohibitions.

On July 1, 2024, the Supreme Court did something unprecedented in 235 years of American governance. It granted criminal immunity to presidents.

Trump v. United States established that presidents have absolute immunity for actions within their “conclusive and preclusive constitutional authority.” Directing Justice Department investigations. Firing subordinate officials. Issuing pardons. Commanding the military. For these acts, Chief Justice Roberts wrote, “Congress cannot act on, and courts cannot examine, the President’s actions.”

Nixon would be envious, even the coverups are now legal.

The ruling created presumptive immunity for all official acts within the “outer perimeter” of presidential responsibility. Prosecutors must prove that charging these acts would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” A nearly impossible standard. Even for unofficial acts, prosecutors cannot introduce evidence of immune official conduct to prove motive or intent.

No Supreme Court ruling had ever granted criminal immunity to presidents. Nixon v. Fitzgerald (1982) granted only civil immunity from damages lawsuits. Gerald Ford pardoned Nixon because prosecution was possible. That’s why a pardon was necessary. Alexander Hamilton wrote in Federalist 69 that presidents “would afterwards be liable to prosecution and punishment in the ordinary course of law.” Trump’s own lawyers argued during his impeachment that criminal prosecution after leaving office provided the necessary accountability.

Trump v. United States eliminates that accountability for vast categories of conduct. Justice Sotomayor’s dissent outlined the implications. “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.” The majority held that using the Justice Department for sham investigations to overturn elections is absolutely immune from prosecution. Courts cannot examine the president’s motives for such acts.

This ruling operationalizes radical Unitary Executive Theory (UET), which holds that all executive power flows through the President with minimal checks. Six justices have explicitly endorsed UET. Roberts served in Reagan’s Justice Department. Alito called it his view of the Constitution’s meaning in a 2000 speech. Thomas, Gorsuch, Kavanaugh, and Barrett round out the group. The majority opinion quotes repeatedly from Justice Jackson’s Youngstown concurrence about the president’s “conclusive and preclusive” authority, the textual foundation of UET. Roberts wrote that “the ‘executive Power’...is ‘vested in a President’” and emphasized the president’s “unrestricted power to remove the most important of his subordinates” and “exclusive authority and absolute discretion” over criminal prosecutions.

Justice Sotomayor closed her dissent with five words. “With fear for our democracy, I dissent.” She omitted the traditional “respectfully.”

The pattern of concentrating presidential power extends beyond immunity. Since 2020, the Supreme Court has gutted federal agency power through at least eight major decisions, all 6-3. The cumulative effect transfers interpretive authority from expert agencies to judges while eliminating structural independence from presidential control. A pincer movement concentrating power in both courts and the executive.

Loper Bright Enterprises v. Raimondo (June 28, 2024) overturned Chevron deference, the 40-year-old doctrine requiring courts to defer to agencies’ reasonable interpretations of ambiguous statutes. Chevron had been cited over 18,000 times in federal court decisions. Chief Justice Roberts ruled that courts must now exercise “independent judgment” without deferring to agency expertise, even for highly technical matters. Justice Kagan warned this makes the judiciary “the country’s administrative czar” while opening every existing regulation to fresh legal challenge.

Between 2003-2013, circuit courts applied Chevron deference in 77% of regulatory disputes. All those precedents are now vulnerable. Thousands of EPA, FDA, SEC, and OSHA regulations can be relitigated without courts giving weight to agency expertise. Justice Gorsuch emphasized the finality. “Today, the Court places a tombstone on Chevron no one can miss.”

West Virginia v. EPA (2022) created the “major questions doctrine,” requiring agencies to show “clear congressional authorization” for regulations of “vast economic and political significance.” The Court blocked EPA’s Clean Power Plan, establishing that statutory ambiguity cannot justify broad regulatory authority over significant matters. The major questions doctrine has since blocked student loan forgiveness, COVID eviction protections, and OSHA’s vaccine mandate.

SEC v. Jarkesy (June 27, 2024) stripped agencies of in-house enforcement power, requiring jury trials for civil penalties. The SEC had won 90% of in-house proceedings versus 69% in federal court. A structural advantage now eliminated. Justice Sotomayor warned the ruling affects “dozens of agencies” and means “hundreds of statutes may now be in peril.”

When agencies lose interpretive power, two entities gain it. Courts gain final interpretive authority. The President gains direct control over subordinate officials. In Seila Law, Roberts held that Congress cannot limit presidential removal power because it prevents the President from “faithfully executing” his constitutional duties. The Court has systematically eliminated “for-cause” removal protections that created agency independence.

This concentrates all executive power in the President rather than dispersing it among independent agencies. Justice Gorsuch made the connection explicit in Loper Bright, writing that Chevron allowed agencies to “swallow huge amounts of core judicial and legislative power” while improperly concentrating “federal power” in ways that violated separation of powers. The framing reveals the goal. Not limiting government power generally, but ensuring executive power flows through presidential control rather than independent expertise.

The dismantling of institutional constraints extends to the electoral system itself. The Roberts Court has systematically dismantled voting rights protections while eliminating judicial review of partisan gerrymandering. Conditions now exist where electoral outcomes can be manipulated without meaningful oversight.

Shelby County v. Holder (2013) gutted the Voting Rights Act by striking down the preclearance formula that required states with histories of discrimination to get federal approval before changing voting laws. The response was immediate. On the same day the decision was announced, Texas Attorney General Greg Abbott tweeted that the state’s previously-blocked voter ID law “should go into effect immediately.” Mississippi announced implementation of its photo ID law the same day. Within three days, Alabama released plans for strict photo ID requirements eliminating Social Security cards and Medicare cards as acceptable identification.

Within two months, North Carolina enacted what a federal court later described as a law targeting African-Americans “with almost surgical precision.” Same-day registration eliminated. Early voting reduced. Pre-registration for 16-year-olds ended. Out-of-precinct voting banned. Strict photo IDs required. Between 2012-2018, counties previously covered by preclearance closed at least 1,688 polling places. Nineteen states implemented restrictive voter ID laws post-Shelby.

Brnovich v. DNC (2021) further weakened the remaining Voting Rights Act by creating a five-factor test making it significantly harder to challenge discriminatory voting restrictions. The 6-3 decision upheld Arizona’s policy of entirely discarding ballots cast in the wrong precinct and criminalizing third-party ballot collection. Justice Kagan’s dissent noted the ruling “weakens the Voting Rights Act, one of the most momentous pieces of legislation in American history.”

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Rucho v. Common Cause (2019) eliminated federal judicial review of partisan gerrymandering entirely. Chief Justice Roberts ruled that partisan gerrymandering claims are “political questions beyond the reach of federal courts” with no “judicially manageable standards.” State legislatures can now draw districts explicitly to favor one party regardless of how extreme the manipulation. North Carolina’s 2016 map was designed to deliver 10 Republicans out of 14 seats (71%) in a state that regularly splits 50-50. Such manipulation is now constitutionally permissible with no federal remedy. The Court came within three votes of going further in Moore v. Harper (2023), nearly endorsing a theory that would have eliminated state court oversight of federal elections entirely.

A president with expanded immunity and control over the executive branch benefits enormously from legislatures produced through gerrymandering and elections with reduced access. Gerrymandered legislatures don’t reflect popular will and face less accountability, making them more likely to defer to executive authority. Reduced voting access disproportionately affects communities that typically oppose executive overreach. Together, these rulings create what scholars call “democratic backsliding.” Elected officials use legal mechanisms to entrench power while maintaining democratic forms.

The Court’s emergency procedures reveal how these principles operate in practice. The Supreme Court’s “shadow docket” (emergency orders issued without full briefing or oral argument) shows stark disparities in how urgently the Court treats different assertions of government power.

The Trump administration filed 41 emergency applications in four years, with SCOTUS granting 28 (68% success rate). By contrast, the Bush and Obama administrations combined filed only 8 emergency applications over 16 years. While emergency decisions show a near-even ideological split overall, 74% of grants since 2016 produced conservative outcomes. Regardless of which party controls the executive branch.

The differential treatment is most visible in two cases separated by just six days.

On August 26, 2021, the Court blocked the CDC’s eviction moratorium in an emergency unsigned order. The moratorium protected millions of tenants from eviction during the COVID-19 pandemic. The Court acted immediately, halting the protection nationwide the same day. The 6-3 decision ended protections that covered roughly 3.5 million people at risk of eviction.

Six days later, when Texas enacted a law using a bounty-hunter enforcement mechanism to ban abortions after six weeks, the Supreme Court declined to block it on September 1, 2021. The same day it took effect. A one-paragraph unsigned order. The Court didn’t hear arguments until 61 days later and didn’t issue a decision until 101 days after the law took effect. The law remained operational throughout, nullifying Roe v. Wade months before Dobbs officially overturned it.

Blocking tenant protections immediately while allowing an unconstitutional abortion ban to operate for months. Ideologically-driven urgency rather than neutral procedural principles.

The shadow docket consistently blocked federal agency actions. OSHA mandate. CDC eviction moratorium. EPA regulations. State restrictions on rights were allowed to take effect. SB8. Alabama redistricting. COVID capacity limits on secular but not religious gatherings. The pattern curtails federal administrative power while expanding state authority to restrict individual rights. Perfectly aligned with conservative policy preferences and UET principles that favor executive power flowing through presidential control rather than independent agencies.

The question becomes whether the legal architecture now permits what it once prevented.

Nixon faced the prospect of prosecution. That’s why Ford pardoned him. Trump now has absolute immunity for core constitutional powers and presumptive immunity for all “official” acts. The criminal law that constrained every previous president no longer constrains presidents for conduct within their official duties.

Independent agencies traditionally limited presidential power through expertise-based regulation and structural independence. Those constraints are being systematically eliminated. Agencies have lost Chevron deference, in-house enforcement, protection from removal, and authority over “major questions.” Presidents can now remove officials at will. When agencies lose interpretive power, presidential control over subordinates expands.

The Court has eliminated preclearance for voting changes, weakened challenges to discriminatory voting restrictions, and removed federal review of partisan gerrymandering. The Court nearly endorsed a theory that would have let legislatures control federal elections without state court oversight. These decisions don’t prevent elections, but they allow manipulation of who can vote and how districts are drawn.

The shadow docket reveals differential treatment based on ideology, processing conservative claims with urgency while delaying progressive ones. More fundamentally, presidential immunity means courts cannot even examine vast categories of official conduct.

What remains? Impeachment. A political process the Court has made less meaningful by granting immunity for the conduct that might otherwise be prosecuted. Congressional oversight. Weakened when the president controls all agency officials through removal power. Public opinion. Filtered through gerrymandered legislatures, elections with reduced access, and a government that treats Fox and other state media as a hiring pool.

By granting immunity from criminal law, eliminating independent administrative constraints, weakening electoral oversight, and consolidating all executive power under presidential control, the Court has systematically removed the structural barriers that prevented previous presidents from exercising unchecked authority.

The framework is being tested. Trump announced his intention to act as a dictator on his first day in office. He maintains 78-87% approval among Republicans who show no signs of withdrawing support. Congressional Republicans demonstrated through two impeachment acquittals that they will not hold him accountable regardless of evidence. His criminal prosecutions for attempting to overturn the 2020 election collapsed after his 2024 victory. He now has criminal immunity as President and regularly shows off his Trump 2028 merch. He has control over federal agencies through unrestricted removal power. He benefits from gerrymandered legislatures and restricted voting access in key states.

The factual record shows the constraints have been removed. The political record shows no mechanism remains to prevent their use. Trump attempted to overturn an election he lost. The Supreme Court has now made such attempts legally permissible for official acts and criminally immune from prosecution.

What do we do about this?

Follow The Existential Republic to find out, this article is a good primer: https://open.substack.com/pub/cmarmitage/p/we-need-to-talk-about-soft-secession?r=64gnd1&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

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Conservatism: America’s Empathy Disorder

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