The Supreme Court has delivered yet another week of decisions that seem to expand the power of the executive branch and consistently favor President Trump or long‑standing Republican priorities, whether on gun rights, immigration, corporate immunity, or the weakening of regulatory oversight. It can be tempting for Democrats to take comfort in the idea that, when they eventually return to power, they too will inherit a presidency unburdened by Congress, lower courts, or suits brought by foreign nationals. Why worry about checks and balances if your side will soon wield the same tools?
But conservative jurisprudence does not work that way.
Part of the project, I believe, is to make it increasingly difficult for Republicans to lose elections at all, whether through voting‑rights rollbacks or a media environment increasingly concentrated in the hands of allies. But even if that effort fails, the Roberts Court has shown again and again that it possesses a remarkable ability to limit Democratic power while expanding Republican power. The mechanism is simple: carve out exceptions, disclaim precedent, and create doctrinal escape hatches that can be invoked later.
We have seen this before. In Bush v. Gore, the Court famously declared that its reasoning should not be used as precedent in future cases. It was a constitutional one‑way valve: binding when it helped Republicans, irrelevant when it might help anyone else. And even when the Court does not say the quiet part out loud, it has no shortage of doctrinal tools to reach the outcomes it prefers. Claims of inconsistency or hypocrisy do not trouble this Court, because it believes it knows what the Constitution requires.
There is no difficulty striking down acts of Congress as unconstitutional. There is no hesitation in declaring that federal agencies have exceeded their authority. State laws can be overridden. Lower‑court rulings can be vacated without explanation. Past precedents can be distinguished into irrelevance or simply reversed. The architecture of judicial restraint has been replaced by a jurisprudence of opportunity.
And so there is no bright side to the Court’s recent overreach. If Republicans somehow lose power, the same creativity that has expanded executive authority today will be used to constrain it tomorrow. The Roberts Court has built a system in which power flows in one direction, and it is not toward the elected branches when Democrats control them.
The lesson is not that Democrats should look forward to wielding these tools. The lesson is that they may never be allowed to.