The United States Supreme Court is perhaps more divisive now than ever before. Dobbs v. Jackson Women’s Health, the 2022 decision which overturned Roe v. Wade, caused the percent of Democrats holding a favorable view of the Court to plummet to levels lower than they have been in the last forty years, according to the Pew Research Center. In the past, opinions of the Court have tended to rebound in the years following an unpopular decision. Favorable views of the Court among Democrats has remained low post-Dobbs, however, as the Supreme Court continues to enter controversial areas of American politics. At the same time, many actions of the Trump administration have positioned the Court to defend (or not defend) American’s civil rights, the rule of law, and the constitution itself.
A recent ABF Fellows CLE program sought to explore the Court’s complicated position as both a provoker of controversy and a protector of democracy, and to consider where this moment fits into the Court’s history. The program, titled “The Supreme Court and the Second Trump Administration,” was held at the 2026 ABA Midyear Meeting in San Antonio. The program featured a panel discussion between Christopher W. Schmidt and Paul M. Smith.
Christopher W. Schmidt is a Research Professor at the American Bar Foundation. Schmidt is also a Professor of Law and the Codirector of the Institute on the US Supreme Court at Chicago-Kent College of Law. Schmidt, a historian and the author of many books on the Supreme Court, is at work on a new book. Tentatively titled “Our Court,” the book will examine key moments in the history of the public’s relationship with the Supreme Court.
Paul M. Smith is a Senior Advisor for the Campaign Legal Center (CLC) and a Visiting Professor at Georgetown Law. In a four decade-long career, Smith has argued before the Supreme Court twenty-one times and secured numerous victories in cases advancing civil rights and civil liberties, including the landmark gay rights case Lawrence v. Texas, as well as Brown v. Entertainment Merchants Ass’n, which established the First Amendment rights of those who produce and sell videogames.
The discussion was moderated by Mario Barnes. Barnes is the Chair-Elect of the Fellows of the American Bar Foundation. He is the Chancellor’s Professor of Law at the University of California, Irvine, and is a nationally recognized scholar for his research on the legal and social implications of race and gender.
Lessons from the Supreme Court’s Past
To make sense of the Court’s future, Schmidt’s presentation turned to three key historical moments when the Court found itself embroiled in criticism and controversy. Schmidt argues that, in each of these moments, the Court didn’t just survive but emerged stronger than before.
The current administration’s ambivalence toward the independence of the Supreme Court was echoed in FDR’s Court packing plan, which would have expanded the number of justices on the Court, allowing the president to pass pieces of his New Deal agenda in a friendlier Court.
Schmidt focused his analysis not on the Court packing plan itself, but on Hugo Black, who was appointed to the Court following the failure of the Court packing plan. Black was a controversial figure known to his fellow senators as emotionally temperamental and politically radical. Though he denied it publicly, Black was also widely known to be a member of the Ku Klux Klan. Despite this, he was confirmed quickly by Congress.
“Black was a member of the Senate, and the Senate had a very strong practice that we give free rides to our own,” Schmidt explained.
In an unprecedented radio address, Black later admitted to having received a lifetime membership to the hate group. While there was significant public backlash, Black held onto his position in the Court. FDR was not interested in demanding Black’s resignation, and in Congress, there wasn’t support for an impeachment. Black remained an associate justice until 1971.
The Court weathered this controversy by waiting it out—eventually, it fell out of the headlines as other news stories took precedent. In a process Schmidt described as “ideas drift,” the primary issues of concern for the Court shifted from economic regulation toward personal liberty claims in the 1940s. This change in priorities allowed the Court—and Black—to reframe themselves as mediators of individual rights, through decisions such as McCollum v. Board of Education, Korematsu v. United States, Shelley v. Kraemer, and others.
In the years following the Brown v. Board of Education ruling, the Court faced a different kind of challenge when complaints and uncertainty about school integration became outright defiance from southern states. Beginning at the local level, white politicians passed resolutions and proclamations against the ruling in a political strategy known as “massive resistance.”
On the other side of the political spectrum, however, supporters of Brown were amplifying their defenses of the Court and its interpretation of the constitution. “One thing we see here are some ironic benefits of this crisis moment,” Schmidt said. “It gave people opportunities to make the case for the Court. The Court was built up by its defenders by virtue of the attack on the Court.” This speaks to some of the Court’s resilience in contentious times: when it draws criticism for a divisive decision, it also draws impassioned support from those on the other side of the issue.
The final case discussed by Schmidt was one which did not inspire such a positive “backlash to the backlash,” as Schmidt calls it: Bush v. Gore. This five-to-four decision, which ended the 2000 presidential election for Bush, split the Court along partisan lines.
“Perhaps no decision in modern times has been so thoroughly condemned on the merits by legal commentators,” Schmidt said. “The best that anyone could say for this decision is that it was something that was needed to end the election, but no one could really defend it on the merits of what it did.”
The decision was so controversial at the time that some feared that trust in the Court was irreparably damaged. This turned out not to be the case. Public opinion of the Court fell immediately following the decision—particularly among Democrats—but approval of the Court rebounded in the years that followed.
Schmidt noted that the case is rarely cited, which accounts for some of its brief life in the memory of Americans. Decisions made in the years following also helped the Court curry favor with Democrats. 2003 brought the Grutter v. Bollinger decision, which upheld affirmative action, and the Lawrence v. Texas decision, which struck down anti-sodomy laws nationwide. These decisions restored, for many Democrats, a sense that the Court could act in their political interests.
The Shadow Docket and the Trump Administration Supreme Court
Paul Smith, in his presentation, highlighted the Supreme Court’s increasing use of what is known as the “shadow docket.” Cases on the shadow docket are more difficult for the public to get information about than those on the merits docket; they are often resolved using unsigned opinions and orders which offer the public little insight into the reasoning of the justices.
Smith explained that the Supreme Court’s recent increased interest in these kinds of cases is unusual. “Maybe in past years they would have done it once a year,” he said, “but they’ve now done it a dozen or more times.” In Smith’s view, many of these decisions have been aimed at allowing the actions of the Trump administration to go on unimpeded by legal challenges.
The Court has not only intervened more often, but also on a wider range of contentious issues. Smith noted that the Court has allowed the Trump administration to fire large numbers of federal employees, in some cases firing enough employees to functionally eliminate entire agencies. The Court has also allowed the administration’s discharge of transgender military servicemembers, allowed ICE to question people based on their perceived ethnicity, spoken language, or occupation, and allowed the withdrawal of legal immigration status from many people who were in the country legally, among other contentious and possibly unconstitutional actions.
Smith pointed out that the Court was not so deferential to the executive branch during the Biden administration, during which time the Court took actions to limit the powers of the executive branch and to move more power into the judicial branch. After Trump was elected, the Court became more cooperative with the executive.
It is possible that the Court’s alignment with the Trump administration is politically motivated, Smith pointed out. There is a conservative majority on the Court, with three of six conservative justices being appointed by the current president. It is possible, Smith argued, that the Court’s high level of cooperation with the Trump administration comes from a place of sincere political alignment. Smith cited the Court’s consistent and uncompromising alignment with the Trump administration against Transgender rights—in Skrmetti, Shilling, Chiles, and other cases—as an area where this partisan affinity is clear.
Smith speculated that the Court could be attempting to avoid conflict with the Trump administration for a different reason, positing that the Court could see this strategy as a way of conserving political resources for a later, more extreme crisis. If the president were to invoke the insurrection act or interfere with a future election, their previous cooperation with the president could put them in a better position to resist those extreme actions.
A Troubling Future for the Court
The presentations were followed by a Q&A session lead by Mario Barnes. Barnes began by asking the panelists if they feel that the United States is heading toward a constitutional crisis.
Schmidt argued that a constitutional crisis could be triggered if the executive branch ignored or defied the judicial branch. That would leave the legislative branch to intervene and enforce the Supreme Court’s decisions, which Schmidt said could be unlikely to happen with the current balance of power in Congress. Smith argued that the Trump administration could seize control over the electoral process—as Trump has been threatened to do—or otherwise interfere with a free and fair election, triggering a constitutional crisis.
Answering an audience question about historical precedents for ideological skews in the Court, Schmidt noted a 1930s supermajority of conservative justices, as well as a liberal majority during the 1960s Warren Court era. Schmidt noted that these majorities were sometimes destabilized by changes in the political landscape before they were destabilized by the appointment of new justices, as happened with the 1940s ideas drift he described earlier. Smith highlighted the increasing entrenchment of Supreme Court justices, noting that it has become uncommon for justices to occasionally join the opposing political opinion in their decisions.
Schmidt, Smith, and Barnes addressed further audience questions about legal challenges to Trump’s tariffs, attacks on academic freedom and diversity at universities, ethical concerns at the Supreme Court now and throughout history, and other issues surrounding the Supreme Court.
“Where capitulation gets you so little, why capitulate?” Barnes said, of the questions facing many colleges and universities that have been threatened by the Trump administration. He predicted that actions against colleges and universities will continue to be litigated as these institutions try to respond to the threats they are facing while protecting their integrity and ability to produce knowledge freely. The discussants ended with more discussion of the Court’s uncertain future, and the unpredictability of our current political moment.
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