Atlantic staff writer David Brooks conceded on PBS NewsHour that the Supreme Court "stood up to Trump and slapped him back down" on several high-profile executive actions, then quietly offered a far more revealing admission about the Court's institutional habits that deserves closer attention than it received.
The exchange, reported by Breitbart's Ian Hanchett, aired Friday. PBS NewsHour co-host Amna Nawaz asked Brooks a leading question about whether "an expansion of executive authority given to President Trump" was a good thing. Brooks answered no, but what followed was more interesting than the headline suggests.
Brooks rattled off a list of areas where, in his view, the Court had pushed back against the president: the Federal Reserve, birthright citizenship, tariffs, and the proposed deployment of National Guard troops in Chicago over local officials' objections. He called these "big authoritarian power grabs" and said the justices had done "pretty good" in blocking them.
Then Brooks said the quiet part out loud. He explained why the Court's willingness to confront executive overreach is the exception, not the rule.
"The court hates to take on a sitting president, because they don't want to take on an elected official. Remember, the Roberts courts upheld Obamacare because they just didn't want to upset what democracy had brought to us."
That single sentence should stop any honest observer in their tracks. Brooks, no friend of the conservative legal movement, essentially acknowledged that the Roberts Court's decision to uphold the Affordable Care Act was not a triumph of legal reasoning but an act of institutional timidity. The justices, in his telling, didn't want to "upset" what a Democratic Congress and president had passed. They deferred not to the Constitution but to political gravity.
This is a remarkable concession from a writer at The Atlantic, a publication that has spent years celebrating the ACA as settled law and treating any legal challenge to it as reckless. Brooks did not frame the Obamacare ruling as a vindication of the statute's constitutionality. He framed it as the Court ducking a fight with an elected branch.
The pattern Brooks describes, a Court that "hates to take on a sitting president" but occasionally does so when the political winds allow, is precisely the kind of judicial behavior that should concern constitutionalists of every stripe. If the Court only checks executive power when it is politically safe to do so, then the check is not really structural. It is situational.
Brooks listed the Federal Reserve, birthright citizenship, tariffs, and the Chicago National Guard question as areas where the justices intervened. He did not cite specific cases or rulings, and the source does not provide them. But his broader point, that the Court acted in these instances, sits alongside his own admission that the same institution flinched when it came to Obamacare.
The Supreme Court's 5-4 decision blocking Trump's removal of Fed board member Lisa Cook is one recent example of the justices stepping into the space between executive ambition and institutional independence. Whether one agrees with the ruling or not, it fits the pattern Brooks described: the Court engaging when the political cost of engagement is manageable.
But where was that courage when the individual mandate rewrote the relationship between the federal government and every American citizen? Brooks answered his own question: the justices "just didn't want to upset what democracy had brought to us."
Consider what Brooks is really saying. When Trump acts aggressively on executive power, the Court should, and does, intervene. When a Democratic administration passes a sweeping entitlement program of questionable constitutional footing, the Court should defer because the political system produced it. That is not a principle. It is a preference.
The Court's recent 6-3 ruling striking down coordinated party spending limits on First Amendment grounds shows the justices are capable of acting on constitutional principle even when it generates political heat. The question is whether that willingness extends equally across administrations and ideological lines, or whether it depends on which president is in the dock.
Brooks did not grapple with this tension. He praised the Court for checking Trump and then, almost in the same breath, explained why the Court historically avoids checking anyone. The contradiction sat there on national television, unexamined by either Brooks or Nawaz.
Nawaz's question itself was revealing. She asked whether "an expansion of executive authority given to President Trump" was a good thing, framing the issue as though the Court were handing Trump new powers rather than adjudicating the limits of powers the presidency already claims. Brooks took the bait and ran with it, but the framing deserves scrutiny.
The deeper problem with Brooks's analysis is that it treats the Court's occasional willingness to confront Trump as evidence the system works. But his own Obamacare example proves the opposite. If the Court defers to the political branches when the stakes are highest, when a massive new federal program reshapes one-sixth of the economy, then the occasional slap on a tariff or a troop deployment is not judicial courage. It is judicial theater.
Conservative legal thinkers have made this argument for years. The Roberts Court's ACA decisions were not acts of judicial restraint in any principled sense. They were acts of institutional self-preservation. The Court did not want the political fallout of striking down a president's signature achievement, so it found a way to uphold it. Brooks, perhaps without realizing it, just confirmed that reading on PBS.
The Court's refusal to take up the E. Jean Carroll verdict against Trump is another case where the justices chose not to act. Whether one views that as proper or not, it fits the institutional reluctance Brooks described, a Court that picks its battles based on political calculus as much as legal merit.
Meanwhile, the Court's decision to side with states on counting mail-in ballots received after Election Day showed the justices wading into election mechanics with real consequences. The Court is not uniformly passive. But its activism, as Brooks inadvertently revealed, is selective, and the selection criteria are not always constitutional.
If the Supreme Court "hates to take on a sitting president," as Brooks stated plainly, then the relevant question is not whether the Court checked Trump on tariffs or the National Guard. The relevant question is what happens when the next Democratic president pushes executive authority to its limits, on spending, on regulation, on immigration enforcement, on any of the dozen areas where the administrative state already operates with minimal judicial oversight.
Will the Court "stand up" then? Or will it do what Brooks says it did with Obamacare, defer, because it doesn't want to "upset what democracy brought to us"?
Brooks seemed satisfied that the Court had done "pretty good" on the cases he cared about. But his own logic suggests the Court's performance depends less on the law than on the political identity of the president being checked. That is not a judiciary fulfilling its constitutional role. That is a judiciary managing its reputation.
The Carroll team's move to collect nearly $5.8 million from Trump after the Court rejected his appeal is a reminder that the justices' decisions carry real-world weight. When they act, consequences follow. When they defer, consequences follow too, they just fall on different people.
Brooks gave the game away on national television. The Court checks the presidents it feels comfortable checking and defers to the ones it doesn't want to cross. He meant it as praise. It landed as an indictment.
A judiciary that only enforces limits when the political winds are favorable is not a check on power. It is a weather vane.