For more than 200 years the US Supreme Court has acted to review and determine the constitutionality of congressionally passed laws and executive actions. Considering the second Trump administration’s resistance to its directives, Timothy R. Johnson, Grace Hertzog and Rachael Houston chart the history of the Court’s role, where it has intervened on legislation, but avoided doing so in cases of presidential authority. These choices now seem to allow the current executive to treat its judgements as optional. They argue that, in the face of the administration’s defiance, the Court must now reassert its role as the final interpreter of the Constitution by making explicit judgements that cannot be disregarded.
The United States Supreme Court is preparing to hear arguments in a case arising from President Donald Trump’s Inauguration Day Executive Order aiming to exclude the children of undocumented immigrants, born on US soil, from being granted automatic citizenship. This is a direct challenge to the long-standing interpretation of the Fourteenth Amendment Citizenship Clause, the text of which is unambiguous: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” (emphasis our own). The language is so clear that the Court affirmed its meaning 127 years ago in United States v. Wong Kim Ark. The plain language and the Court’s interpretation leave little room for presidential reinterpretation.
From dispute resolution to a constitutional guardian
With ongoing conflicts between the second Trump administration and the judiciary, it is useful to explore how the role of the federal courts, and their relationship with both the US Constitution and the executive branch, has evolved over time. In the US system of separation of powers, the framers envisioned the judiciary as the “least dangerous” branch. As Alexander Hamilton explained in Federalist No. 78, the courts have “neither force nor will, but merely judgment.” Unlike Congress, which possesses the power of the purse, or the presidency, which commands the military and the executive bureaucracy, the judiciary’s strength lies solely in its authority to interpret the law. It wields no sword, controls no budget, and commands neither enforcement mechanisms nor (usually) the political capital to do so.
Yet this seemingly passive role evolved dramatically after Marbury v. Madison (1803), when the US Supreme Court first declared an act of Congress unconstitutional and, in doing so, established the principle of judicial review. In his opinion for the Court, Chief Justice John Marshall famously declared, “It is emphatically the province and duty of the judicial department to say what the law is.” With that pronouncement, the judiciary claimed a power not explicitly enumerated in the text of the Constitution but one that would come to define the institution’s power and role in American government.
Judicial review transformed the judiciary from a reactive, dispute-resolving, body into a constitutional guardian. That is, it gave the Court the authority to nullify legislative and executive actions that violate the US Constitution. More than just a procedural tool, judicial review is what makes the Constitution a binding legal framework. It ensures that no statute, however popular, and no executive order, however urgent, can override the supreme law of the land. In short, judicial review provides a structured means of resolving fundamental disagreements about the limits of government power and the scope of individual rights.
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The Supreme Court asserts its right to interpret what the law is
One of the most striking applications of judicial review doctrine came nearly two centuries after Marbury, in City of Boerne v. Flores (1997). In Boerne the Court actively checked legislative overreach when Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore a stricter standard of judicial scrutiny for laws that burdened religious exercise. Congress justified passing the RFRA by asserting that Section 5 of the Fourteenth Amendment gave it the authority to enforce constitutional rights as it saw fit. In Boerne the Court disagreed. Writing for the majority, Justice Anthony Kennedy emphasized that, while Congress holds enforcement power under Section 5, it may not redefine the substance of constitutional rights. That interpretive authority rests with the judiciary alone.
This decisive and effective use of judicial review in Boerne (with a direct citation to Marbury) illustrates the Supreme Court at its most constitutionally assertive, as it reaffirmed its interpretive supremacy and reined in an overreaching Congress. The decision not only invalidated a major piece of federal legislation but also sent a broader message: that the elected branches cannot unilaterally redefine constitutional rights.
While Boerne stands as a clear example of the Court actively exercising judicial review to nullify legislative overreach, a closer analysis of how it invokes Marbury reveals a striking asymmetry. The Court has often cited Marbury to strike down congressional statutes or to reaffirm its role as the final interpreter of the Constitution in the face of legislative action, as it has in United States v. Lopez (1995), Printz v. United States (1997), United States v. Morrison (2000), and NFIB v. Sebelius (2012). It also engages with questions of executive power in its review of federal agency actions and has cited Marbury in that context as well, including in FDA v. Brown & Williamson Tobacco Corp. (2000) and Loper Bright Enterprises v. Raimondo (2024).
The Supreme Court is often quiet on presidential authority
Notably, however, the Court has largely refused to apply Marbury to the president himself. Even in high-profile cases involving presidential action such as Trump v. Hawaii (2018) and Biden v. Nebraska (2023), the justices have grounded their reasoning in statutory interpretation, or the major questions doctrine, rather than framing these disputes as a constitutional confrontation in the potent language of Marbury. A rare exception is United States v. Nixon (1974), where the Court unanimously ordered President Richard Nixon to comply with a subpoena to turn over the infamous Watergate tapes. Chief Justice Warren Burger, writing for the Court, explicitly invoked Marbury to rule against the president. In Nixon, the Court squarely asserted its constitutional authority in the face of strong presidential resistance. But this landmark case remains the exception rather than the rule.
This gap in judicial assertiveness is more than a procedural oversight—it represents a deeper structural vulnerability of the separation of powers. When the Court wields its most powerful doctrinal and rhetorical tool against Congress and executive agencies but hesitates to apply it to the president, it distorts its place in the system of checks and balances and undermines its own credibility as a neutral constitutional arbiter. In effect, the Court has permitted the expansion of presidential power, with minimal resistance, while reserving its most forceful interventions for the legislature and the bureaucracy.
The importance of the birthright citizenship case
The Court now faces an opportunity to change this historical pattern as it prepares to hear arguments in the birthright citizenship case. The legal question at stake in this set of consolidated cases (Trump v. CASA, Trump v. Washington, and Trump v. New Jersey) focuses specifically on whether the various federal district court injunctions delaying enforcement of Trump’s executive order should be upheld. But the larger issue is whether constitutionally guaranteed birthright citizenship can be abolished by executive order. In our estimation, the most important aspect of these cases is whether the Court will finally apply Marbury with the same clarity and constitutional courage it demonstrated in Boerne to an act of clear presidential overreach.
The Supreme Court has already been put to a similar test this year but failed to meet the moment. Indeed, in Kristi Noem, Secretary, Department of Homeland Security, et al. v. Kilmar Armando Abrego Garcia (2025) the justices held that the government had unlawfully deported Kilmar Abrego Garcia to El Salvador, despite a binding withholding order. Ultimately, the order upheld the district court’s order directing the government to return him to the US.
And yet, as of this writing—weeks later—Abrego Garcia remains in El Salvador. In an ABC News interview marking his 100th day in office, President Trump acknowledged that he could facilitate Abrego Garcia’s return with a simple phone call but would not do so. When pressed by ABC’s Terry Moran, Trump said, “I could,” but added, “If he were the gentleman that you say he is, I would do that. But he is not.” And the day after he gave that answer, US Secretary of State, Marco Rubio, made the administration’s position even clearer when, during a cabinet meeting, he was asked by a reporter about the case and commented that: “…the conduct of our foreign policy belongs to the president of the United States and the executive branch, not some judge.”
“P20250430MR-1297” by The White House is United States government work.
The Supreme Court has left room for the president to delay and defy its directives
In our view, the reason Abrego Garcia has not been returned is because the Court’s opinion pulled its punches. The Court simply urged the government to “share what it can concerning the steps it has taken and the prospect of further steps.” This soft language, the Court’s omission of an explicit citation to Marbury, and a lack of any clear deadline or enforcement mechanism, left room for executive delay and, ultimately, defiance. While President Trump has stated, “If the Supreme Court said bring somebody back, I would do that. I respect the Supreme Court,” his administration has not acted.
The separation of powers crisis facing the US today is not just about a single individual or a single case. It is about what happens when judicial rulings, including those from the nation’s highest court, become optional—when constitutional rights depend on whether the president feels like enforcing them. Abrego Garcia’s case demonstrates, in real time, the fragility of judicial authority when met with presidential resistance. In short, the Court spoke with only quiet authority and the chief executive of the US refused to respond.
The upcoming birthright citizenship case, set for oral argument on May 15th, gives the Supreme Court a pivotal opportunity to course correct. If the Court once again affirms a constitutional right while permitting the president to defy its judgment, it sends a dangerous message: that constitutional guarantees are conditional and enforceable only when politically convenient for the president. The Court must invoke Marbury v. Madison, not merely as precedent, but also as a principle of governance. It must speak not in whispers, but with the full throttled voice of constitutional authority.
Chief Justice John Roberts has this sense as well. In a May 7th discussion he said, “The judiciary’s role….[is to] decide case but, in the course of that, check the excesses of Congress or the executive.” He concluded that, “In our Constitution…the judiciary is a coequal branch of government, separate from the others, with the authority to interpret the Constitution as law and strike down, obviously, acts of Congress or acts of the president.”
In the coming week the entire Court has a chance, and the duty, to follow the Chief Justice’s admonition and reassert its role as the final arbiter of the Constitution and the ultimate guarantor of individual rights. If it fails to do so, the judiciary risks becoming not just the least dangerous branch but the most irrelevant one and an institution whose judgments can, and potentially will, be publicly affirmed but quietly disregarded.
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- Note: This article gives the views of the author, and not the position of USAPP – American Politics and Policy, nor the London School of Economics.
