SCOTUS 2025: “Dickensian Ass” or just tied to Trump Executive Orders?
Introduction – May 29th, 2025
The recent June 27, 2025 decision of the USA Supreme Court is alarming but not unforeseen. Many on the left, including ourselves, have warned that the USA under President Trump has been rapidly veering towards fascism. Reliance on “the law” was seen by even many intelligent progressives in the USA as adequate protection against fascism.
Yet already on December 1, 2024, it was plainly obvious that for some time there had been a danger inherent in the Supreme Court and its pro-Trump composition. We wrote then:
“(Trump’s) three appointees to the Supreme Court and their role in ending the constitutional right to an abortion in 2022, transformed the (Presidential) race into a referendum on gender and women’s rights.”
Citing New York Times November 6th 2024; In MLRG.online, “Hovering on the Brink of Fascism: What Happened in the November 5th 2024 USA Elections? at Dec 1, 2024
To believe in the SCOTUS’s impartiality would be the act of hopeful idiots. As Charles Dickens had said – about a man widely presumed to be nagged mercilessly and thereby unhappy – despite the law’s dictum that the man rules his wife:
“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is an ass – an idiot”.
Charles Dickens in “Oliver Twist’; 1838
Yet many well-meaning liberals have placed enormous faith in the “Law” and the Supreme Court. The rough reasoning was a naïve belief that the Constitution provided the people protection. This protection would – it was preached – arise from the “separation of powers“.
- Separation of powers
The modern concept of such putative protection, was derived from two thinkers in the early period of the development of bourgeois capitalist society. These were firstly John Locke (1632 -1704) in his work “Two Treatises of Government (1690)”. This discusses legislative, executive, and federative powers. It gave way to what was the second formulation by Charles Louis de Secondat, baron de La Brède et de Montesquieu, who became simply known as Montesquieu (1689-1755). He wrote out what became the standard model for separation of powers, as used in several Constitutions thereafter.
This was used in the USA Constitution. The belief that it would guard against abuse of power is expressed by the University of Missouri Kansas City, Faculty of Law Professor Doug Linder in 2023 – at a site called “Exploring Constitutional Law”. This interpretation relies heavily on James Madison (1750-1836), who was the fourth President of the USA (1809 to 1817). He is generally acclaimed as the “father of the USA Constitution”. As Linder expresses it:
“The first article of the Constitution says, “All legislative powers…shall be vested in a Congress.”
The second article vests “the executive power…in a President.”
The third article places the “judicial power of the United States in one Supreme Court” and “in such inferior Courts as the Congress…may establish.
Separation of powers serves several goals. Separation prevents concentration of power (seen as the root of tyranny) and provides each branch with weapons to fight off encroachment by the other two branches.
As James Madison argued in the Federalist Papers (No. 51), “Ambition must be made to counteract ambition.”
Clearly, our system of separated powers is not designed to maximize efficiency; it is designed to maximize freedom.”
Doug Linder at U Missouri 2023
Indeed, so much hope was held by some, that they argued that the USA legal apparatus would hold the line against fascism and dictatorship. Despite Trump’s elections. But some legal scholars have warned that “protection” from the “separation of powers” is a futile hope. As expressed by the legal scholar Jack Beermann:
“In fact, the Supreme Court has been remarkably consistent in rejecting judicial enforcement of strict separation of powers.”
Jack M. Beermann; An Inductive Understanding of Separation of Powers , in 63 Administrative Law Review 467 (2011); see at p. 2;
Since Marx and Engels were well aware of this notion, we can see their views. They jointly attacked the notion of “the separation of powers” in their joint work “The German Ideology” (written 1845-1846). The phrase expressed a situation in which there was a “shared mastery … in an age and in a country” where there were the contending powers of “royal power, aristocracy, and bourgeoisie” – all “contending for mastery“:
“The ideas of the ruling class are in every epoch the ruling ideas, i.e. the class which is the ruling material force of society, is at the same time its ruling intellectual force. The class which has the means of material production at its disposal, has control at the same time over the means of mental production, so that thereby, generally speaking, the ideas of those who lack the means of mental production are subject to it. The ruling ideas are nothing more than the ideal expression of the dominant material relationships, the dominant material relationships grasped as ideas; hence of the relationships which make the one class the ruling one, therefore, the ideas of its dominance. The individuals composing the ruling class possess among other things consciousness, and therefore think. Insofar, therefore, as they rule as a class and determine the extent and compass of an epoch, it is self-evident that they do this in its whole range, hence among other things rule also as thinkers, as producers of ideas, and regulate the production and distribution of the ideas of their age: thus their ideas are the ruling ideas of the epoch. For instance, in an age and in a country where royal power, aristocracy, and bourgeoisie are contending for mastery and where, therefore, mastery is shared, the doctrine of the separation of powers proves to be the dominant idea and is expressed as an “eternal law.”
Karl Marx and Frederick Engels; “Part I: Feuerbach. Opposition of the Materialist and Idealist Outlook B. The Illusion of the Epoch; Ruling Class and Ruling Ideas”; Volume 5 Collected Works; London and Moscow 1968; p.5; also a version is at Marxist Internet Archive
So be it… That is the Marxist view. But now, another bridge has been crossed. A crossing that confirms Marx and Engels’ view just cited. Such illusions in “the USA law” – and reliance on “separation of powers” – has surely now – finally been completely shattered…?
Because on the 27th June 2025, an important decision was taken by the USA Supreme Court. This should be accompanied by an even more forceful emphasis on the need for a workers’ movement to stop fascism. What happened at the Supreme Court of the US (SCOTUS)?
In essence, the SCOTUS has now legitimised the unconstitutional actions of the current President Trump administration. Specifically on the question of the rights to citizenship of those born within the USA to parents who are not USA citizens. But the ruling went further. Part of this decision was in effect also a denial of lower courts and state courts to be able to challenge a so-called ”Executive order.”
2. The 27 June 2025 Supreme Court ruling on the ‘birthright’ clause
What specifically was the SCOTUS asked to adjudicate upon? The issue was over the “Birthright” clause, which was established by the 14th Amendment to the USA Constitution in 1865. To understand how it arose, it is necessary to return to the days of the end of the American Civil War in 1865.
i) Foreshadowing the 27 June 2025 decision
The Supreme Court’s 27th June decision does not come “unannounced”. As recently as June 23, another major decision was made on the immigration front – by the Supreme Court. In the process, they overruled a lower court judge, who had inconvenienced the Trump administration:
“The Supreme Court on Monday allowed the Trump administration to deport migrants to countries other than their own, pausing a federal judge’s ruling that said they must first be given a chance to show that they would face the risk of torture and potentially clearing the way for the administration to send men held at an American military base in Djibouti to South Sudan.
The court’s order gave no reasons and said the judge’s ruling would remain paused while the government pursues an appeal and, after that, until the Supreme Court acts…
The order was the latest in a series of rulings related to immigration decided by the justices in summary fashion on what critics call the court’s shadow docket. Two allowed the administration to lift protections for hundreds of thousands of people who had been granted temporary protected status or humanitarian parole.
But others insisted on due process — notice and an opportunity to be heard — for migrants before they are deported. Monday’s ruling moved in a different direction, refusing to allow migrants to make the case that they would face torture if sent to places with which they have no connection.
The absence of any reasoning made it impossible to understand the majority’s thinking.
Tricia McLaughlin, a spokeswoman for the Department of Homeland Security, called the ruling “a victory for the safety and security of the American people.”
“D.H.S. can now execute its lawful authority and remove illegal aliens to a country willing to accept them,” she said in a statement. “Fire up the deportation planes.”
Adam Liptak; “Supreme Court Lets Trump Deport Migrants to Countries Other Than Their Own”; June 23, 2025.
Truly asinine. In their dissent, three Supreme Court Justices made the dangers apparent – without using that adjective:
“In dissent from Monday’s order, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, said the majority had ignored a federal law that requires due process.
Congress expressly provided noncitizens with the right not to be removed to a country where they are likely to be tortured or killed,” Justice Sotomayor wrote, adding that the Supreme Court has long held that people must be given a chance to explain why they should not face “grievous loss.”
“Being deprived of the right not to be deported to a country likely to torture or kill you plainly counts” as such a loss, she added. “Thus, plaintiffs have a right to be heard.”
Adam Liptak; “Supreme Court Lets Trump Deport Migrants to Countries Other Than Their Own”; June 23, 2025.
But the Supreme Court was soon to do even better for President Trump. It has now since June 28, in essence enabled any Executive Order to be placed above the law. The ruling extending Trump’s power came on the specific example of the Fourteenth Amendment on the birthright citizenship clause.
ii) The origins of the “birthright clause”
At the time of the American Civil War and for a period after, the Republicans were the progressive party as compared to the Democrats, who were pro-slavery. In the 1850s, the Republican Party organized against basing classes in America upon race. Democrats tended to support racial discrimination. There were about:
“4,272 Black Americans in California in 1870 while there were almost half a million white Americans.”
Heather Cox Richardson;”Letters from an American”; June 27, 2025 at “; here
But – in addition, there were many immigrants such as the Irish, Chinese, Mexican, and Indigenous Americans. All were confronted by discriminatory state laws. In terms of their actual numbers, the perceived threat by white racists, of Chinese immigrants was higher than that posed by Black Americans:
“The discovery of gold in California in 1848 drew significantly larger numbers of Chinese immigrants starting with 325 in 1849 and reaching 20,026 three years later… In 1865, the Central Pacific Railroad recruited over 12,000 Chinese workers to build the western stretch of the transcontinental railroad: they comprised 90 percent of the workforce … With the completion of the railroad, Chinese workers found work in other industries across the country; they established Chinatowns … In 1868, the United States signed the Burlingame-Seward Treaty, which sanctioned and protected Chinese immigration through articles that promised the Chinese the right to free immigration and travel within the United States and allowed for the protection of Chinese citizens in the United States Despite the treaty and the essential labor performed by the Chinese railroad workers, Chinese immigrants faced exploitative working conditions, racial discrimination, and brutal attacks.”
Pennee Bender; “Chinese Exclusion and Racial Gatekeeping in the United States”; at “Who Built America” accessed 29 June 2025; at Who Built America
After the Civil War, the beaten Confederates continued to refuse to accede civil rights to the Blacks in the South. Hence in 1866:
“the Republican Congress passed a civil rights bill in 1866 establishing “[t]hat all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed, are hereby declared to be citizens of the United States; and such citizens of every race and color… shall have the same right[s] in every State and Territory in the United States.”
Heather Cox Richardson; “Letters from an American”; June 27, 2025 at substack here
During the Civil War the first Republican President Abraham Lincoln was re-elected in 1864. But in order to attempt a healing of rifts, he ran on “a union ticket” together with a Southern Democrat – Andrew Johnson – as his Vice-President. However upon Lincoln’s death from assassination in 1865, that Vice-President then became President Andrew Johnson.
Johnson vetoed the 1866 Civil Rights Bill, arguing vehemently against the proposed law that it:
“comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gipsies, as well as the entire race designated as blacks,” as citizens, and (he) noted that if “all persons who are native-born already are, by virtue of the Constitution, citizens of the United States, the passage of the pending bill cannot be necessary to make them such.” And if they weren’t already citizens, he wrote, Congress should not pass a law “to make our entire colored population and all other excepted classes citizens of the United States” when 11 southern states were not represented in Congress.”
Heather Cox Richardson Ibid;
As Cox Richardson makes clear – the Congress modified the Law and the 14th amendment did “not confer citizenship” on the “Chinese, Indians, and Gipsies”. Instead, it read:
“The first sentence of the Fourteenth Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Heather Cox Richardson, Ibid
This did become – in effect – a clause formally making Black Americans citizens:
“In the short term, Americans recognized that the Fourteenth Amendment overturned the 1857 Dred Scott v. Sandford decision, in which the Supreme Court ruled that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” The Fourteenth Amendment established that Black men were citizens.”
Heather Cox Richardson, Ibid.
Finally, the rights of the children born in the USA of other non-Black immigrants into the USA were also formalised. By the 1898 U.S. v. Wong Kim Ark decision, the Supreme Court ruled that one Wong Kim Ark (“born 1873, the child of Chinese parents who were merchants in San Francisco”) was a citizen because he was born in the United States.
iii) What did Trump ask the Supreme Court to do?
In May 2023, Trump announced his intention:
“Then-presidential candidate Donald J. Trump released a video promising that on “Day One” of a new presidential term, he would issue an executive order that would end birthright citizenship. He claimed that the understanding that anyone born in the United States is automatically a citizen is “based on a historical myth, and a willful misinterpretation of the law by the open borders advocates.”
Heather Cox Richardson, Ibid.
Not surprisingly, as President, Trump quickly moved this question to the Supreme Court:
“The executive order at issue in this case was one issued by President Trump on his first day back in office, depriving citizenship to babies born in the United States to undocumented parents or even temporary residents, and it is as unconstitutional as they come, violating the clear wording of the 14th Amendment. Three federal judges, supported by three courts of appeals, have already ruled that it is illegal to end birthright citizenship.”
David Firestone; “The Supreme Court’s Intolerable Ruling”
New York Times; June 27, 2025
The SCOTUS in effect enabled Trump’s denial of the 14th Amendment. Perhaps even more significant than the actual ruling of the SCOTUS decision, is the general intent of the ruling. This makes any challenge to a Presidential executive order – impossible. Even if the executive order is itelsef a violation of the Constitution or illegal:
“In an astonishing act of deference to the executive branch, the Supreme Court essentially said that district judges cannot stop an illegal presidential order from going into effect nationwide. A judge can stop an order from affecting a given plaintiff or state, if one has the wherewithal to file a lawsuit. But if there’s no lawsuit in the next state over, the president can get away with virtually anything he wants.”
Firestone Ibid.
The “reasoning” behind this is bizarrely “explained” by one of Trump’s appointees as follows:
“Justice Amy Coney Barrett, who wrote the majority opinion, said the judiciary does not have “unbridled authority to enforce” the executive’s obligation to follow the law, because doing so would create an “imperial judiciary.”
Firestone Ibid.
What the court still allows is a private individual to sue for their birthright citizenship. But this then simply allows only the rich to be able to challenge an Executive Order. As two Democratic appointee Supreme Court justices point out:
“But if the courts can’t stop illegal activity in the White House on a national basis, what good are they? That was the point made by Justices Sonia Sotomayor and Ketanji Brown Jackson in two of the most fervent dissents in recent memory. Both were clearly incredulous that the majority was willing to stand back and let Trump undermine a fundamental principle of citizenship in place for 157 years. Sotomayor, joined by Jackson and Justice Elena Kagan, said the Trump administration knows it can’t win a decision that its order is constitutional, so it is instead playing a devious game: applying the order to as many people as possible who don’t file a lawsuit. “Shamefully,” she wrote, “this court plays along.”
Those without resources to sue, Jackson wrote in a separate dissent, are disproportionately “the poor, the uneducated and the unpopular,” and so they will be subject to Trump’s whims. “This is yet another crack in the foundation of the rule of law,” she wrote, “which requires equality and justice in its application.”
Firestone Ibid.
Trump is quite right to exult in this decision. For it permits any Executive Order he wishes to make:
“Trump immediately held a news conference where he said the opinion would allow many of his other policies that have been put on hold. As Sotomayor wrote: “No right is safe in the new legal regime the court creates.”
Firestone Ibid.
A recent conference with judges was supposed to discuss the real issue of violence against judges – especially those who have taken positions against Trump. But Supreme Court Chief Justice John Roberts – appointed by George W. Bush in 2005 – once more hewed to his Republican President. He ignored the issue in specifics. Having via the SCOTUS decision of Friday, told his constituency of lower judges to effectively shut up – he now limited himself to generalities about “toning down rhetoric”. All without any reference to Trump’s own threats against the judiciary:
“At a conference with federal judges, the chief justice did not mention the court’s decision sharply limiting their power, focusing instead on the danger of threats to the judiciary…
The chief justice did not single out or mention President Trump at all, though threats against federal judges have risen drastically since Mr. Trump took office, according to internal data compiled by the U.S. Marshals Service. The threats have included a pipe bomb hoax against a sister of Justice Amy Coney Barrett.
Many federal judges have spoken out about their concerns that heated rhetoric against judges who are overseeing high-profile cases challenging Trump administration policies could lead to political violence.”
Abbie VanSickle; “Chief Justice Urges Political Leaders to Tone Down Rhetoric”; New York Times 29 June 2025.
iv) The summary of SCOTUS decisions in Trump administration’s 20 weeks to date
As the New York Times analysis has it, there had been an “extraordinary run of victories for President Trump”:
“The Supreme Court term that ended on Friday included an extraordinary run of victories for President Trump, culminating in a 6-to-3 ruling largely eliminating the main tool that his opponents have used to thwart his aggressive agenda.
In that case and others, the justices used truncated procedures on their emergency docket to issue decisions that gave Mr. Trump some or all of what he had asked for in cases dealing with immigration, transgender troops, and the independence of government agencies.
The emergency rulings in Mr. Trump’s favor were theoretically temporary and provisional. In practice, they allowed the president to pursue his policies indefinitely and sometimes irreversibly.
In the first 20 weeks of Mr. Trump’s second term, his administration filed 19 emergency applications asking the justices to pause lower court losses while lawsuits continued. That is the total number of such applications the Biden administration filed over four years, and far more than the eight applications filed over the 16 years of the George W. Bush and Barack Obama presidencies. The spike was a result of challenges to the blitz of executive orders issued by the administration since Mr. Trump took office. The upshot was a winning streak delivered by a court he remade in his first term, appointing three of the six conservative justices.”
Adam Liptak , Abbie VanSickle, with Alicia Parlapiano
“A Triumphant Supreme Court Term for Trump, Fueled by Emergency Rulings
Using truncated procedures, the six-justice conservative majority gave a green light to many of the president’s most assertive initiatives.
New York Times; June 29, 2025.
In essence, “nearly all” the emergency cases of the Trump Presidency are approved by SCOTUS:
“The Trump Administration Was Favored in Nearly All of its Emergency Cases
Trump-related emergency docket cases since January, with those granted in favor of the administration highlighted.
Adam Liptak , Abbie VanSickle, with Alicia Parlapiano Ibid.
In particular, the Trump regime has basically won most of its goals in the anti-immigrant attacks:
“In emergency orders, the court allowed the administration to lift protections for nearly 350,000 Venezuelan immigrants who had been shielded from deportation under a program known as Temporary Protected Status, and to end a humanitarian program that offered temporary residence for more than 500,000 noncitizens from Cuba, Haiti, Nicaragua and Venezuela.”
Adam Liptak , Abbie VanSickle, with Alicia Parlapiano Ibid.
In an accompanying table, the details of the cases can be seen:
So – the “law is an ass” – as Mr. Bumble uttered in Oliver Twist. At any rate, it is certainly not an adequate defence against fascism. So, where are we exactly on the ‘slide’ into fascism in the USA?
4 . How far has the Trump government proceeded to open fascism?
As of December 2024, we had argued that it could not be said that fascism had been installed. As we put it, there were three reasons to believe it was too early to make that call:
“…the USA is not yet a fascist state. However, the Trump Presidency heralds an extreme right-wing turn… at the very least, it is preparing such an option. There are currently three major limitations…
First – Is there now a mass base already that could serve as the foundation for fascism? We believe that this has not been formed yet. Although the Republican Party has been taken over, it has not been completely purged into a fascist party…
Secondly, an organised fascist fighting military has not yet been organised…
Thirdly:
“We should be clear whether or not a majority of the capitalist class has come to the position of the need for fascism as of now… Musk and Jeff Bezos led a large number of capitalists in giving open support to Trump… As yet, it is not clear whether there is enough substantial consensus on the need to adopt full-blown fascism…
as the economic crisis of the capitalist class deepens, this becomes ever more a possibility. Indeed, this is exactly what ‘Project 2025’ envisages building. “
MLRG.online “Hovering on the Brink of Fascism: What Happened in the November 5th 2024 USA Elections? at MLRG.online December 1, 2024
However, by the 13th April, 2025 – we had amended our position. This was we believe, correct and appropriate to the pace of evident changes:
“The left and the working class in the USA have seen the encroachment on democratic rights and the refusal of the Supreme Court to restrict the attack on these launched under the Trump government. Several democratic rights have already been fast eroded from within the shell of the USA Constitution. Recall that President Trump was elected under bourgeois democracy…
These short theses begin with recognising that there is a core unity of the USA ruling class that enabled Trump to come to power. This unity is one that does not resist the onslaught on the working class and the notions of dissent and free speech. Despite the repugnance of some of the ruling class for him, the ruling class wants a serious restructure of the state.”
“Theses on The Trump 2 Administration and the USA Ruling Class: A re-set to a new imperialist order”; at MLRG.online 13th April, 2025;
To expand more fully on our December 1, 2024 reservations, there have been some meaningful changes. These were evident by April 2025, but are even more clear now in end-June 2025.
(1) The Republican Party seems to have undergone enough further ‘stiffening’ – to be now undoubtedly an adequate base suitable for a fascist party base.
(2) There have been no significant Democratic Party objections to Trump’s agendas, signifying that indeed, the whole or the main part of the capitalist class – was in overall agreement with Trump’s agenda.
(3) Since the open re-tooling and great encouragement of the notorious ICE forces, they have become the core of a “an organised fascist fighting military”. We have discussed the savagery of their attack in Los Angeles recently. (See: “Justifying” a military crackdown – Trump, Stephen Miller use ICE to provoke and goad”; at MLRG.online June 9, 2025).
However, this is likely to be become more entrenched with the new Trump’s described “Big Beautiful Bill” just passed in the twilight hours. (See Robert Jimison”Sleep-Deprived Lawmakers Stay Up All Night to Pass the ‘Big, Beautiful’ Bill”; New York Times; May 22, 2025; and Heather Cox Richardson “Letters From an American”; June 28, 2025 at substack here)
Commentators, including immigration specialist Aaron Reichlin-Melnick (@reichlinmelnick.bsky.social) state this likelihood of growth of the ICE forces quite clearly.
Reichlin-Melnick notes that the Bill would allow ICE to become the “nation’s largest jailer… with more funding than the entire Federal Bureau of Prisons… and more officers than the entire FBI:
“If the GOP reconciliation bill passes, ICE gets through FY2029: – $45 billion for detention, on top of the current annual budget of $3.4 billion – $14.4 billion for transportation and removal, on top of the current annual budget of $750 million – $8 billion for hiring/retention – Billions more.”
Reichlin-Melnick at Substack post
It is in this light that the recent Supreme Court decisions must be viewed.
Conclusion
The working class in the USA is now in an even more precipitous and dangerous position.
The time scale to full implementation may well be still relatively extended, as it was in Weimar Germany.
Nevertheless, only a determined working class resistance, in a wide United Front – with the participation of Marxist-Leninist forces, can resist the full imposition of fascism. Some signs of a United front have emerged (“The Shaping up of the Anti-Trump, Anti-Fascist Front in the USA” at MLRG.online June 15, 2025). But this needs dramatic strengthening.
June 30, An update making factual correction on how President Johnson came to office; kindly provided by A.Ginsberg.
