Supreme Court under Donald Trump America's most powerful court goes underground - and that has consequences
The Supreme Court decides the future of the USA: the judges are currently in the spotlight like never before - and at the same time are increasingly isolating themselves. What does this mean for America?
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- The Supreme Court has intensified its isolation: new confidentiality obligations and harsh threats against employees are intended to prevent leaks, but are fueling fear and mistrust.
- On key issues in Donald Trump's second term in office, the Supreme Court frequently makes decisions in emergency rulings without justification, often giving the president a free hand.
- The growing secrecy has concrete consequences - such as the still-pending decision on Trump's tariffs, which could cost the US government billions.
"Where is the Supreme Court?" wonders CNN. And: "What about the decision on Trump's tariffs that we've been waiting for so long?" The New York Times, meanwhile, explores the question of "how the Supreme Court secretly made itself even more secretive". It is an exaggeration that reveals more about the state of American democracy than the judges might like.
In fact, it is striking that we are currently hearing even less than usual about the already secretive Supreme Court. Is it just because the employees had to sign a confidentiality agreement in November 2024, in which they were forbidden from divulging internal information from the highest court in the USA under threat of severe penalties? Or is there more to it than that?
Rush decisions without explanation
The fact is that in Donald Trump's second term in office, the Supreme Court is facing rulings that are having a greater impact on the political and social fabric of the USA than it has had for decades. Transgender rights, immigration, the powers of federal authorities, the conflict with the Federal Reserve, the deployment of the National Guard against the will of states and cities - the Supreme Court is deciding on fundamental issues.
But the Supreme Court is not only concerned with these fundamental issues: the Trump administration's rigorous style of government has already landed it in a number of cases before the Supreme Court - and has often been given a free hand. Conspicuously often, emergency decisions were made without any explanation in temporary injunctions, so-called "shadow dockets". Just as conspicuously often, Trump has been given a free hand through emergency decisions - for example, to wind up the Department of Education.
Of course, the loss of trust in the Supreme Court began even before Donald Trump's second term in office.
Trust is being shaken
It started with leaks. Firstly, revelations in 2023 about luxury trips and gifts that Justice Clarence Thomas had accepted from a billionaire over the years raised questions. The conservative judge was regularly in league with one of the Republicans' biggest individual donors - and did not disclose the donations.
A year earlier, in an unprecedented move, an explosive draft judgment was leaked to the magazine "Politico": Weeks before the scheduled announcement, it became known that the Supreme Court would overturn the nationwide right to abortion.
At that time, details of internal debates at the Supreme Court also leaked out - for example, about the conservative majority's attempt to grant Donald Trump (and future presidents) extensive immunity in office. The background to this was the threat of criminal proceedings for attempting to influence the election and storming the Capitol.
Fear is running rampant in the Supreme Court
Instead of engaging in a discussion as to whether the time was ripe for more openness and transparency, Chief Justice John Roberts reacted in the fall of 2024 with complete isolation. Nothing from the Supreme Court was to be made public - except the oral reasons and written opinions on the rulings of the nine constitutional judges.
At a time when the political climate is becoming harsher and the work of the institution that Trump decisively shaped during his first term of office needs to be scrutinized more closely, the Chief Justice considers tough measures to be necessary. The fact that the "judicial family" sticks together and remains silent was previously an unwritten law, a tacit agreement.
Now there are official obligations to remain silent. They stir up fear among employees - and thus fulfill their purpose: those who have the power do not have to explain themselves. They can simply exercise it. In any case, the threats are drastic: anyone who reports on the inner workings of the Supreme Court risks their professional existence.
Even Thomas Jefferson warned against secrecy
The measures show how much the Supreme Court feels "under the microscope", says Jeffrey L. Fisher, Professor at Stanford Law School and former Supreme Court Clerk. That the justices want to work unnoticed, however, is a problem.
"Judges are not elected, they serve for life. This power only works as long as it is socially accepted," argues Daniel Epps, professor of law at Washington University School of Law. Precisely because the Supreme Court is not elected, it must be possible to understand how it exercises its power.
Others disagree. Former federal judge Paul J. Watford, for example, argues that the public has no right to internal deliberations; leaks undermine collegiality and could discourage judges from changing their minds.
Incidentally, this dilemma is not new. As early as 1821, Thomas Jefferson warned that the court worked too much in secret and evaded public judgment.
The long wait for the customs ruling
Meanwhile, the secrecy has concrete consequences. This is particularly evident in the dispute over Trump's tariffs. For months, the country has been waiting for an answer to a key question: is the President even allowed to impose these tariffs?
After the oral hearing in November, there were hopes of a ruling in January, but now the decision has been delayed until at least the end of February. In the meantime, Trump is continuing to impose tariffs - with potentially massive consequences. If the Supreme Court overturns the tariffs, repayments of several hundred billion dollars could be due. Judge Amy Coney Barrett spoke openly of potential "chaos".
For Trump, the delay is politically existential. For the USA, it is democratically sensitive. A court that remains silent while shaping the country risks its legitimacy. The Supreme Court may seal itself off to protect its authority. But the less it explains, the louder the question of who this silence serves.
