Honorable Sir,

I realize that we’re not old friends, and there is no reason why you would consider my thoughts to be any more worthwhile than anyone else’s, but as a lawyer and believer in the institutional value of the Supreme Court, I hope you will consider them nonetheless.

As you are no doubt aware, the Supreme Court has been in a precarious situation for the past couple months. The decisions of the past few years have given rise to doubts about the integrity of the Court. I understood, but deeply disagreed with, the Court’s dismissal of stare decisis in Dobbs. I understood the Court’s point in US v. Trump, but see the decision as functionally sloppy and impractical. And then there is Bruen, which has proven to be an unworkable mess rife with mischief. This is not to suggest you’re unaware of these problems, but that they provide the context within which the nation perceives the legitimacy of the “Least Dangerous Branch.”

But the past two months have given rise to a new, and, I would suggest, distinct danger to the integrity of the Court. The barrage of novel issues and actions by the Trump administration, arising by Executive Order or, well, nothing, challenge a plethora of legal norms and doctrines, statutes and the Constitution, at an unprecedented pace.

These issues are coming before the Court with stunning speed, winding up on the Court’s shadow docket to address restraining orders seeking to prevent the execution, in all its meanings, of these actions and maintain as much of the status quo ante as possible before the Trump administration prevails by attrition regardless of whether its actions are lawful. The Supreme Court is powerful, but even the Supreme Court cannot resurrect the dead.

As potentially destructive as so many of the government’s novel actions may be, the case of Kilmar Armando Abrego Garcia presents a tipping point for the Court. Dean Erwin Chemerinsky, along with the once-respected Harvard constitutional law professor Laurence Tribe, have encapsulated the problem created by the government’s actions and the arguments it has proffered to this Court.

There would be nothing to stop the government from jailing its critics in another country and then claiming, as it is now, that the courts have no jurisdiction to remedy the situation. Armed with this power, the government would know that Immigration and Customs Enforcement or the F.B.I. or any federal law enforcement agency could apprehend anyone, ignore the requirements for due process and ship them to El Salvador or any country that would take them. These individuals would have no legal recourse whatsoever from any American court. The administration could create its own gulags with no more judicial review than existed when Stalin did the same thing in the Soviet Union.

In another time, the notion that a president would do such a thing would be considered ridiculous. So much of our jurisprudence relating to executive power relies on the belief that the public would only elect a president of intelligence, integrity and good will. It relies on the belief that a president would, for better or worse, honor our Constitution and be self-constrained by our laws and the rulings of the judicial branch of our government. I suggest that may no longer be true.

That the Trump administration has chosen not to correct this outrageous mistake, but rather to argue that the federal judiciary is powerless to compel the government to abide its rulings. This is a Marbury v. Madison moment. This is a Worcester v. Georgia moment. This is a moment when the American people will find out whether the Supreme Court serves the Constitution and laws of a nation or a man who threatens to ignore it and reduce it to irrelevancy unless it does as he desires.

There will be a constitutional crisis either way. Should President Trump, upon learning of an adverse ruling by this Court, respond, “let Roberts enforce it,” he will have forsaken any duties the president has under Article II of the Constitution to “take care.” But if this Court, facing President Trump’s recalcitrance, bends to his will and accommodates his lawlessness to avoid the response, then we will no longer have an independent judiciary, but a sycophantic court owned by a president. Either one will present a crisis for the nation with dire consequences.

Faced with this choice, I urge the Supreme Court to maintain its dignity and legitimacy, and face the moment with the integrity that the Constitution demands of it. If we are to spiral into crisis, let it not be because the law has failed us, but because a lawless president has done so. If ever there has been a moment for this Court to defend itself as an honorable institution, it is now. What happens after the Court refuses to twist the Constitution to suit President Trump’s desires, it will not be because the Supreme Court of the United States has failed us.

Respectfully,

Scott H. Greenfield