Objection! / March 16, 2026
The emperor is completely naked, but thanks to flawed legal doctrine, Republican judges continue to insist that he is fully clothed.
President Donald Trump is flanked by Vice President JD Vance, left, and Speaker of the House Mike Johnson during the 2026 State of the Union address.(Kenny Holston/New York Times/Bloomberg via Getty Images) “The devil’s greatest trick was to convince the world that he didn’t exist.” Apparently this famous quote was written by 19th century French poet Charles Baudelaire, but I first heard this phrase in the film The usual suspects. I think about this often, because it sums up Donald Trump’s relationship with Republicans on the Supreme Court.
The Donald Trump that exists in the real world – the racist, fascist sexual predator who gleefully tweets illegal and unconstitutional motives for its policy – does not exist according to the Supreme Court. Instead, the Court invented a different Trump, one who doesn’t talk, doesn’t lie, and adheres to well-established norms regarding the use of executive power. He imagined a normal American president, grafted that creation onto Trump’s legal records, and then governed as if that fiction were reality.
There is a legal doctrine that explains what I believe the Supreme Court is doing: the “presumption of regularity,” which dates at least since 1926. This doctrine requires courts to presume that members of the executive branch acted correctly and in good faith. An administration is presumed to have good reasons to justify its actions, and those actions are not supposed to be “pretextual,” meaning that courts are not supposed to act as if the administration had invented a plausible, legal reason to justify its patently illegal actions. The presumption of regularity is granted to members of the executive branch and to no one else. Only they can show up in court and expect people to take them at their word.
We hear the Supreme Court invoke the presumption of regularity all the timeespecially during oral arguments, when the judges talk about giving “respect” to the administration. This administration deserves no deference because it lies all the time. But the presumption of regularity encourages the court to defer to the administration and assume that it is telling the truth.
The result is that the court presumes that Trump had good reason to shut down DEI programs, even though it exists clear evidence of the blatant racism behind such actions. This assumes that the administration did its best to follow the rules before attacking the administrative state – even if it was a private billionaire who made the cuts, in violation of all the rules. And it presupposes that there is a real national emergency simply because the president said so — never mind that the only national emergency is gunmen invading our cities.
By adopting this doctrine, the Supreme Court is asking us to do something patently foolish – and one of the many ways we know this is that many other courts refuse to be caught in the trap. A study published by the digital law review Just safety Last November, there were more than 60 cases in which lower courts criticized the Trump administration for basing its arguments on faulty information, and he cited numerous cases of lower court judges castigating the Trump administration for conducting “bad faith,” making “patently unreasonable” or “contrived” legal arguments, and providing the court with “misinterpreted,” “misleading” or “intentionally false” evidence and information.
Current number
The lower courts, in essence, rejected the presumption of regularity. They no longer treat this administration as normal. But the problem is that they are systematically rejected by the Supreme Court.
However, this could change. The Supreme Court has been playing Trump’s game for a decade, but two recent cases suggest that even Trump’s hand-picked justices may be tired of him treating them like idiots.
In December, in an unsigned “ghost” opinion, the Supreme Court rejected Trump’s attempt to deploy the National Guard to Chicago. Trump argued that he should be allowed to deploy the Guard because Chicago’s regular police force could not enforce the law. The majority didn’t buy his argument — which, predictably, angered the justices who think Trump should be treated like a god-king. In dissent, Justice Samuel Alito (joined by Clarence Thomas) wrote: “[T]The president stated unequivocally that he had “determined that the regular forces of the United States are not sufficient to ensure that the laws of the United States are faithfully executed…in Chicago.” under the presumption of regularity, the Court must presume that the President correctly arrived at his determination.” (Emphasis mine.)
Shortly afterward, the court heard a case challenging the firing of Lisa Cook, a member of the Federal Reserve Board of Governors. During the pleadings, alleged attempted rape Brett Kavanaugh, among others, pointed out that Trump’s reason for firing Cook (that she lied on a mortgage application) was a pretext. He suggested the administration made up a reason to fire her since it couldn’t admit it was due to political disagreements. (Fed commissioners can only be fired “for cause.”) Kavanaugh describes the administration process amounts to “let’s find something, anything, about this person, and then everything will be fine.” »
As of this writing, the court has yet to rule on Cook’s firing, so Trump could still win this one. But whatever happens, whether the court continues to treat Trump as usual will be the defining question of every legal fight involving the administration — from this term’s tariffs and citizenship rights to everything else Trump is trying to achieve, including rigging the midterm elections. How the court chooses to answer that question will determine whether it will attempt to clear Trump and allow him to rule the republic like a dictator — or whether it will attempt to stop him. Ignoring what Trump says is the first step toward justifying what Trump does. His regime can’t hold if people just listen to what he actually says.
This is not only true for the Supreme Court. I would argue that the major failure of the mainstream media in the Trump era is their insistence on treating Trump like a normal president. The same goes for their treatment of the entire MAGA movement. Their insistence on treating MAGA cultists like ordinary people who firmly believe in white supremacy, the subjugation of women, and the elimination of the LGBTQ community is part of the same failure. This is how we get endless interviews with Trump supporters in restaurants, and how Ezra Klein ends up telling us that Charlie Kirk “practiced politics the right way. »
None of this is normal. It’s not normal for masked federal agents to murder people in the streets – it’s not even normal for federal agents to wear masks. It is not normal to kidnap foreign leaders. It’s not normal to create concentration camps outside Big Lots warehouses and detain people there without a hearing or trial. None of this is regular and none of this is acceptable.
If the Supreme Court simply started treating Trump like the real person he is instead of the fake person it wishes he was, it might also encourage other institutions that Trump has bullied to do the same. We are in an “emperor has no clothes” situation. The most impartial thing the Supreme Court can do right now is simply recognize this. This is actually happening in many other courtrooms across the country.
If I were on the Supreme Court, I would start every hearing by saying, “Your client is naked, Mr. Solicitor General. Let’s talk about this before we figure out why he wants to set the Constitution on fire.”
Support independent journalism that breaks the rules Even before February 28, the reasons for Donald Trump’s imploding popularity couldn’t have been clearer: rampant corruption and billions of dollars’ worth of personal enrichment during an affordability crisis, a foreign policy guided solely by his own abandoned sense of morality, and the deployment of a murderous campaign of occupation, detention, and deportation on American streets.
Today, an undeclared, unauthorized, unpopular and unconstitutional war of aggression against Iran has spread like wildfire across the region and Europe. A new “forever war” – with an ever-increasing likelihood of US troops on the ground – could very well be upon us.
As we have seen time and time again, this administration uses lies, misdirection, and attempts to flood the zone to justify its abuses of power at home and abroad. Just as Trump, Marco Rubio, and Pete Hegseth offer erratic and contradictory justifications for attacks on Iran, the administration is also spreading the lie that the upcoming midterm elections are threatened by non-citizens registered to vote. When these lies go unchecked, they become the basis for further authoritarian encroachment and war.
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Elie Mystal Elie Mystal is The nationjustice correspondent and columnist. He is also an Alfred Knobler Fellow at the Type Media Center. He is the author of two books: New York Times bestseller Let me respond: A Guide to the Constitution for Black Men And Bad Laws: Ten Popular Laws That Are Ruining Americaboth published by Th e New Press. You can subscribe to his Nation newsletter “Elie c. US » here.
