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Supreme Court

David Cole's Qualified Defense of the Supreme Court

The prominent liberal legal scholar and former ACLU leader outlines how the Court has often checked Trump, but also critiques it for going against precedent.

Ilya Somin | 8.1.2026 5:45 PM

The Supreme Court Justices (2023). (Pool/ABACA/Newscom)

Debate over the Supreme Court's performance in recent years has become highly polarized. So it's worth noting that prominent left-liberal Georgetown law professor  David Cole recently published a qualified defense of the Supreme Court's recent rulings in the New York Review. He emphasizes their crucial role in constraining abuses of power by Trump. Cole is also the former National Director of the ACLU, and thus - to understate the point - not a natural ally of the Court's conservative majority. As we shall see, he's far from an unqualified fan of their recent performance, and still takes them to task on some points. But the more positive aspect of his appraisal is still notable:

Can we rely on the courts, and most importantly the Supreme Court, to resist major assaults on the rule of law by the Trump administration? That question was front and center during the Court's recently concluded 2025–2026 term. With its six Republican appointees—three nominated by Trump—some feared that, much like the Republican-controlled Congress, the Court would reflexively back the president….

By the end of the term, however, the story was more nuanced. The Court blocked four of Trump's major initiatives: ending birthright citizenship, imposing worldwide tariffs, firing Federal Reserve governor Lisa Cook, and dispatching National Guard troops to Chicago, Portland, and other cities. In other significant cases as well, the Court rejected positions advanced by Trump. In a decision that he called "a tremendous loss," it held that federal law permits the counting of mail-in ballots posted by election day but received thereafter. And it refuted the Trump administration's assertion of constitutionally unchecked power to demand that Google turn over the cell phone location histories of unlimited numbers of Americans. The justices may not be, as Trump called them after he lost the tariffs case, "fools and lapdogs for the RINOs and the radical left Democrats," but this is not Donald Trump's Court….

These are not the decisions of a Court doing the president's bidding or voting exclusively along party lines. By contrast, had these issues been put to a vote in Congress, would a single Republican have broken ranks?

The rulings cannot be dismissed as mere token losses for Trump. Each one established important guardrails on the executive branch. The tariffs decision rejected the president's assertion of emergency powers, a step courts rarely take. Justice Samuel Alito called the birthright citizenship case "one of the most important decisions in the history of the Court." The decision blocking the firing of Cook protected the independence of the Federal Reserve, the nation's most powerful financial institution. And the........

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