It's Not Just a Constitutional Crisis in the Trump Era. It's Constitutional Failure -- by Stanford Professor Jack Rakove [View all]

The problem isn’t just the crisis of the administration defying the courts. It’s the failure of the legislative and judicial branches to check the president.

"... with the current Supreme Court, one cannot be too confident. Why? Its responses to the two 2024 critical election cases remain deeply troubling to anyone who takes the injunctions of the Constitution seriously. The Court handled one case with striking expedition.
But it manifestly stalled the other with a run-out-the-clock set of procedural delays that deprived voters of findings they were entitled to possess before November 5.
The decisions in Trump v. Anderson (which involved the application of Section 3 of the Fourteenth Amendment to Trump’s eligibility to appear on the Colorado primary ballot) and Trump v. U.S. (the presidential immunity case) should sit atop any hit list of constitutional failures.

Two conditions define this failure.
First, whatever its motivations, the Supreme Court majority simply refused to recognize the gravity of January 6, 2021, a date which stands as the constitutional counterpart to the surprise attacks of December 7, 1941, and September 11, 2001. Rather than focus on specific facts and constitutional aspects of January 6 or confront the novel attempt of a sitting president to obstruct the peaceful transfer of power, the majority insisted, in Justice Neil Gorsuch’s words, that “We’re writing a rule for the ages.” In his opinion, Chief Justice John Roberts similarly observed that “we cannot afford to fixate exclusively, or even primarily, on present exigencies” or “transient results.” One can only wonder what makes some unforeseeable future contingency more urgent than the facts at hand. Law evolves not by dealing with imaginary contingencies but by making sense of existing facts.

The second condition seems more surprising.
It is the stunning inadequacy of the majority’s understanding of constitutional history and core concepts of American constitutionalism. In Trump v. United States, the chief justice emphasized the desire of the Framers to create an executive who could act with “vigor,” “energy,” and “dispatch.” Any threat of being prosecuted for undertaking decisions requiring these qualities would weaken the presidency, thus providing a rationale for presidential immunity...

The Court similarly erred in its concern about Trump’s indifferent willingness to put Vice President Michael Pence in danger. Here, the chief justice vaguely invoked the theory of separation of powers, stressing the close relationship between the president and vice president. But this emphasis badly misstates their relationship. For much of its history, the vice presidency was not—repeat, not—considered part of the executive. The office’s original sole constitutional function was to preside over the Senate. That was the capacity in which Pence was acting on January 6. The real threat to the separation of powers on January 6 came from the outgoing president’s depraved effort to stay in power.

The Supreme Court defaulted on its responsibility. Its duty was not to fret over future presidential prosecution but to deal with the facts at hand so that the electorate would be fully informed before November 5. By stifling the proceedings in Judge Tanya Chutkun’s courtroom, the Court made its unique and potentially lethal contribution to our failing Constitution.
In our fractious polity, fresh insults to constitutional norms and settled practices of governance occur daily. That is why the phrase constitutional crisis no longer describes our situation. The Constitution has failed, and we no longer know which institution will rescue it."

https://washingtonmonthly.com/2025/06/27/its-not-just-a-constitutional-crisis-in-the-trump-era-its-constitutional-failure/