The Supreme Court is a powerful institution, but it alone cannot sustain American democracy. That much is uncontroversial. What is controversial is whether the Court is a net positive for democracy right now.

A common view, at least among liberals and progressives, is that the Court is a big net negative. The justices are accused of joining in the Trump administration’s assault on constitutional government, or of being complicit in that effort. Yet the justices have so far played a key role in preserving our democracy by safeguarding one of its preconditions, namely, the rule of law.

The Court has fulfilled this role in three ways. It has checked some executive branch actions. It has successfully discouraged the executive branch from taking some actions at all. And it has suspended or slowed down other executive branch policies, leaving room to check them at a more auspicious time.

Here are some examples. The Court checked the executive branch by halting its midnight effort to deport dozens of people without due process under the Alien Enemies Act. The Court discouraged partisan impeachments of district court judges who had ruled against the administration. And it helped suspend the executive’s repudiation of birthright citizenship up to and including the present day, while reserving the option to declare that policy unlawful.

Each of these three examples is important in its own right. Together, they represent a successful assertion of judicial power against a potentially overbearing executive. And, again, these are only examples. Here is another trilogy of illustrations: the return of Kilmar Abrego Garcia to the United States, the executive’s shelved proposal to suspend habeas corpus near the border, and the continued insulation of the Federal Reserve from direct presidential control.

The Court’s critics, of course, usually point to a different set of cases. Time and again, lower courts have tried to block recent executive branch actions, only to see the justices issue expedited relief to green-light the Trump administration. Relevant cases involve the removal of many officials from office, deportation of certain aliens with temporary immigration status, termination of trans military service members, and refusal to spend appropriate funds. These Court rulings, and still others, are deemed craven, arbitrary, or malign.

But in most, if not all, of these cases, the justices are simply applying the law as they understand it. The removal cases are perhaps the best example. Informed observers have known for several years that most statutory limits on the president’s removal power are holding on by a thread. If anything, the justices have recently tacked away from aggrandizing executive power by going out of their way to preserve the Federal Reserve’s independence.

True, the justices have made a habit of taking up the executive’s requests for expedited review. Whether called the “shadow,” “emergency,” or “interim” docket, expedited review virtually became the norm during 2025. To some extent, these rulings curbed lower courts that had overreached. Even so, critics are right that many rulings were unduly rushed, confusing, or sloppy. A good (or bad) example is NIH v. APHA, in which Justice Gorsuch, joined by Justice Kavanaugh, reprimanded a lower court that had reached a reasonable conclusion.

Yet even these decisions served a purpose. The judiciary has neither “sword” nor “purse,” as Hamilton famously observed, “but only judgment.” That allusion to “judgment” refers to formal court decrees as well as the need for wise discretion. Courts cannot simply seize the reins of government from the elected branches. Nor should they try. The result would be overt defiance of court orders—as nearly occurred during the administration’s early months.

So, what can the judiciary do when faced with a political threat to the rule of law? Any practical answer must involve both carrots and sticks. A president thinking about whether to defy the courts will care not only about what the courts can do *to* him, but also what the courts can do *for* him. And the judiciary, as currently configured, has quite a bit it can do for the present administration. Conservative courts can and will legitimize much of the president’s agenda.

Chief Justice Roberts came close to saying as much. Last March, Republican politicians, including President Trump, suggested impeaching various judges who had ruled against the administration. Like overt defiance of court orders, partisan impeachments pose a fundamental threat to the rule of law. Once either of those Rubicons is crossed, federal courts would likely cease to operate as an independent branch, and partisan politics would run free from law.

Roberts then issued a rare public statement. It read in part as follows: “[I]mpeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.” In the springtime months that followed, there were no impeachments. Instead, as just noted, the justices made extensive use of their appellate jurisdiction.

That implicit bargain has proven stable in part because the executive has been selective about which cases it brings to the justices. For instance, the executive did not seek expedited review of the First Amendment claims successfully raised in lower courts by law firms and by Harvard University (my employer). In these and other cases, lower courts have checked the executive branch. Meanwhile, the administration focused on stronger claims for expedited relief and so enjoyed a summer “winning streak” at the Court.

Come fall, however, the administration again began to push the envelope when seeking stays (a form of expedited relief). The justices responded by postponing these edgier requests. For instance, the justices scheduled oral argument on the President’s attempt to remove Lisa Cook, a member of the Federal Reserve Board. The justices also requested extra briefing regarding a dispute concerning the President’s attempt to deploy the National Guard in Illinois. These postponements mattered. A stay delayed is a stay denied.

After considering the National Guard case for weeks, the justices recently denied the government’s stay request. This 6–3 decision pointedly checked the President’s effort to deploy military forces domestically, but it also fit within the Court’s more complex overall approach. Through its past rulings, including recent expedited rulings, the Court has bolstered its credibility among the President’s supporters. At the same time, the Court’s frequent gradualism has helped defuse interbranch conflict and allowed for political debate and pushback.

As winter begins and we approach the second Trump administration’s second year, we can expect the justices to delay less and decide more. Major decisions on topics like birthright citizenship are coming due. But the justices will continue to deploy both carrots and sticks. The carrots will be big executive branch wins on matters like the removal power. And the sticks will be executive branch defeats or draws on issues like tariffs, birthright citizenship, or the Federal Reserve.

Even if the justices have performed well to date, they may not continue to do so. These are still early days, with three years left in the present administration. Perhaps the “constitutional crisis” that marked 2025 is already subsiding. Or it may escalate. There are no guarantees. So far, however, the Supreme Court has helped to sustain both the rule of law and our democracy.