Trump vs. SCOTUS might be the ultimate test of our democracy

A battle is brewing between the president and one of his hand-picked justices.

With President Trump taking a wrecking ball to so much of the federal government, it can be difficult for anyone to keep track of which institutions are standing firm and which are collapsing. That's by design. This administration is clearly on a mission to “flood the zone”—with rubble.

Amid the wreckage, there's one institution that might have the strongest shot at standing firm. That's the Supreme Court. It’s ironic, of course, since the current court is a Trump-friendly, far-right political force that has gifted the president unprecedented powers.

Yet here we are. Trumpists (his devoted minions caught up in a cult of personality) are now going after his hand-picked Supreme Court Justice Amy Coney Barrett. And, though the “legacy media” doesn’t seem to realize it, Trump is also flagrantly going up against his own first high court pick, Neil Gorsuch. I explored this in a recent episode of my podcast They Stand Corrected, which fact checks the news.

What have these two conservatives done that's so egregious? For Barrett, it’s daring to join a majority in rejecting the Trump administration’s freeze on foreign aid. “On podcasts and social media, conservative allies of President Donald Trump called the former law professor and appeals court judge ‘evil,’ a ‘closet Democrat’ and a ‘DEI hire,’” the Washington Post reported.

Never mind that she helped deliver the signature “achievement” of his first term, ending legal protections for abortion established by Roe v. Wade—a decision a large majority of Americans, including Republican women, oppose. Barrett also backed up most of a decision giving a president absolute immunity for actions carried out within constitutional authority, helping free Trump to emulate the monarchs and dictators he admires.

In Trumpworld, any action out of lockstep with his latest demands is enough reason for someone to face the rage of his machine. (For the time being, Trump himself seems to be trying to keep his hands clean, calling her “very good” and “smart” and insisting he was unaware of the attacks on her.)

Gorsuch, meanwhile, has largely been a defender of whatever Trump wants to do. Last month, only Gorsuch and Samuel A. Alito supported his desire to immediately fire the head of a government watchdog agency. Even Trump’s third Supreme Court pick, Brett Kavanaugh, sided against him on that. (Hampton Dellinger, head of the Office of Special Counsel, ultimately gave up his legal battle after a circuit court allowed him to be removed temporarily. In a statement, he said the court’s move meant “OSC will be run by someone totally beholden to the President for the months that would pass before I could get a final decision from the U.S. Supreme Court.”)

So how is Trump up against Gorsuch? The issue involves his executive orders banning trans people from joining the military and stating that in the federal workforce everyone is to be listed as either male or female.

Though this move pleased those who reject concepts of gender identity, it is inaccurate even by traditional standards. Some people are not exclusively male or female in terms of reproductive organs or chromosomal makeup. Many of the same people arguing that certain athletes should not be considered women for the Olympics are now supporting Trump’s rule in which those same individuals would have to be considered women for federal employment.

Here’s where Gorsuch comes in. In 2020, he wrote the ruling in Bostock v. Clayton County, Ga. He noted that Title VII of the Civil Rights Act bans discrimination in employment based on gender.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” Gorsuch wrote. “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Trump’s moves brazenly challenge the ruling of a man Trump himself once called “the man of our country and a man who our country really needs and needs badly to ensure the rule of law and the rule of justice.”

Legal battles have begun.

It’s a situation Trump isn’t used to. He can’t fire these people. He has the power to fire many in the executive branch, and he has used his political power to get voters to effectively fire lawmakers he dislikes (such as Republicans who stood staunchly against the “big lie” of a stolen election, including Rep. Liz Cheney). But thanks to what is supposed to be a balance of powers, a president cannot fire Supreme Court justices.

Will his chosen justices buckle to the pressure of his hordes and never again dare to stand in his way? Or will they show the fortitude to hold onto at least some of their alleged principles? It’s a sad day when this is what we have to wish for. But in 2025 America, a small outpost of remaining judiciary independence—even if it’s a shred of its former self—might prove to be one of the last institutions standing.

Josh Levs is host of They Stand Corrected, the podcast and newsletter fact-checking the media. Find him at joshlevs.com.

---